Majority
p. 6RUTTER v. BOYD. N. Y. Supreme Court, First Department; Chambers, June, 1877.
Headnote
Attachment.—Cebtibtcate op Property attached.—Contempt. —Production op Papers.—Beperence.A person required to give a certificate of property in Ms hands belonging to the defendant in an attachment, who refuses to do so, may be compelled to submit to examination as well as one who giyes a false certificate.[1]
He cannot put an end to the examination by denying defendant’s title to the goods.
If he refuses to answer on the ground that papers in his possession show that the goods do not belong to the defendant, he must, if required, produce the papers, and may be punished for contempt if he refuse.
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Motion by plaintiff to compel a witness to produce papers, &c., before a referee.
This action was brought by Thomas Rutter and John Renaud Butter, of New York, against Charles. Boyd, of England, to collect $1,966.24.
Immediately after the commencement of the action,, and on or about April 10, 1877, the plaintiffs procured an attachment against defendant’s property, and the sheriff served on one Howard Fleming, of New York, a copy of the attachment, with a notice that all property, debts, credits and effects, of the defendant Boyd, and all books of account, vouchers and papers relating thereto, in his hands, were liable to the said attachment, and requiring him to furnish a certificate of any property of the said defendant in his hands, being capable of manual delivery.
Mr. Fleming having refused to furnish any certificate, an order was procured that he attend and be examined under section 236 of the Code of Procedure. On the return day of the order he was sworn and his examination was directed to proceed before a referee. On that examination it was shown that he had in his possession letters from the defendant, copies of letters to the defendant, and bills of lading and invoices of
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property shipped him by the defendant, which property, with a part of the said letters and papers, was at Philadelphia, but which he claimed did not belong to the defendant according to the construction, of the said letters. He was asked to produce these letters, copies of letters, bills of lading and invoices, but refused. He also declined, by advice of his counsel, to answer certain questions in reference to a conversation with one of the plaintiffs.
This motion was made by one of the plaintiffs, that Fleming be required to produce before the referee the said letters, &c., and all other books and papers in his possession or under his control, relating to the property which he had sworn did not at the time of the attachment belong to the defendant; and that he be punished as for a contempt in not answering the interrogatories propounded to him.
John A. Wright, for plaintiffs, in support of the motion.
North, Ward & Wagstaff, for witness Fleming, opposed.
Mr. Fleming is mistaken in supposing that he can put an end to the examination by denying, under oath, the defendant’s ownership of the goods in question. If he had so certified, the plaintiff would still have been entitled to an examination on proof of the falsity of the certificate; and the present moving affidavits would have sufficed for such an order. The argument is, that if the false certificate be sustained by a false oath, then the examination can proceed no further, and the only remedy is by indictment. This is not a correct view of the statute, especially as Mr. Fleming places his denial upon a construction of letters and documents. He must produce the papers and let them speak for themselves. He was also guilty of contempt in refusing to answer a line of
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questions, which (I must be permitted to call) his apparent trifling necessitated, and which were within the discretion of the referee. • He must produce the papers, and an attachment must issue unless he pay $10 costs of this motion, and answer the questions propounded, and such others as the referee may deem proper.