p. 331William Crompton, Appellant, v. Charles G. Dobbs and Stanley M. Moran, Composing the Firm of Dobbs & Moran, Respondents.Headnote
Deposition — examination of party before trial — subpoena duces tecum « may issue.Whenever on the examination of a party before trial it appears that he cannot testify without reference to his books and papers, their production may be compelled by subpoena duces tecum. The subpoena may issue before examination if it is apparent that the party to be examined cannot answer the questions without reference to his books, A subpoena issued in the first instance should, however, be limited to the production of papers in the defendant’s custody or control, showing the transactions set forth in the moving affidavit; etc.
Appeal by the plaintiff, William Crompton, from an order of the Supreme Court, riiade at the Flew York Special Term and entered in the office of the clerk of the county of FFew York on the 4th day of April, 1907, vacating a subpoena duces tecum theretofore served upon the defendant herein.
Louis W. Stotesiury, for the appellant.
William Bell Wait, Jr., for the Respondents.
Whenever it appears that a party under examination before trial cannot testify without reference to his books and papers it is competent to compel tbeir production by subpoena duces tecum. (Gee v. Pendas, 87 App. Div. 157 .) Unless this could be done the attempted examination would' in many cases be defeated'. Ordinarily the occasion for the issuance of such a subpoena does not arise until the examination has so far proceeded as to demonstrate that the presence of the books and papers is necessary in order to enable the party under examination to testify. (Ryan v. Reagan, 46 App. Div. 593 .) Where it appears, however, as it does in this case, that the nature of,the matters concerning which the party is to be examined, and his general attitude toward the examination are such that it' is reasonably certain that he will not or cannot answer the questions to be propounded to him without reference to his books, there is no'
p. 332reason why the subpoena should not issue at once. The subpoena ■ should not, therefore, have been wholly vacated. It was, as we think, too broad, and should have been modified so as to limit fits ■operation, in the first instance at least, to. the books, papers,, documents and records in def endants’ custody or -control showing the persons with whom defendants had the transactions set forth in the moving affidavit, with the date of each transaction and the price or prices at which each was effected. If, as the examination proceeds, .the necessity .is developed for the production of other books: or -documents another subpoena may be issued.
' The order appealed from will be modified in accordance with the ' views "herein expressed and ■ as modified will be affirmed, without ■ costs to either .party. , .
Present Ingraham, Laughlin, Clarke, Scott and Lambert, JJ.
Order .modified as directed in opinion, and as modified affirmed, ■ without costs, .. . ’ ’