Wilkens v. American Bank of Torreon — 133 A.D. 646

Majority

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John Anthony Wilkens, Appellant, v. American Bank of Torreon, S. A., Respondent. W. F. Burns Company and Walter F. Burns, Appellants.

First Department,

July 13, 1909.

Headnote

Discovery — examination of plaintiff’s assignor—effect of submission to jurisdiction — contempt — failure to produce agent not served. ■

The assignee of a corporation which, although not a party of record, is claimed to he the real party in interest, is in no position to complain, in a collateral contempt proceeding, of 'an order requiring the corporation and its officers to appear for examination on behalf of the defendants and to produce certain documents, where therewas.no appeal and the assignor appeared and submitted to the jurisdiction of the court. '

But where the original order for the examination requiring the corporation to produce its traveling agent for examination required the service of the order on said agent, the corporation cannot he held in contempt in failing to produce the agent if no service was made upon him.

' Appeal by the plaintiff, John Anthony Wilkens, and by the W. F. Burns Company and another, from, an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of May, 1909, directing the W. F. Burns Company to appear by its vice-president and general manager, Walter F. Burns, and by its agent and employee, John Y. Bowes, and produce certain documents and submit to an examination as provided in a previous

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order, and that upon default thereof, defendant might have an order adjudging said company and said Burns in contempt of court.

A. H. Gleason of counsel [Hastings & Gleason, attorneys], for the appellant.

George T. Hogg of counsel [Briesen & Knauth, attorneys], for the respondent.

On March 24, 1909, a justice of the Supreme Court made an ex parte order requiring the plaintiff’s alleged assignor, the W. F. Burns Company, to appear by Walter F. Burns, its vice-president and general manager, and by John Y. Bowes, its agent, for examination on behalf of defendant concerning the matters at issue in this action and requiring the production of certain documents and papers.

This order remains unmodified, nnreversed and.not appealed from. It was duly served on the W. F. Burns Company within the State by service upon Walter F. Burns as vice-president and general. man age r, and as the appointed representative of said company within the State upon whom process can be served. He appeared and it was stipulated that his testimony might be taken before Frank F. Kirkpatrick with the same force and effect as if he had appeared before the justice sitting at Special Term. He failed to produce the documents and telegram or copies of the telegram called for by the order, and was asked this question: “ Who does' know of any telegram ? A. Chicago, I think. Q. Since the service of this order upon you, have you requested the Chicago office to forward any of the" documents therein mentioned? A. Ho, sir.” Whereupon an application was made to the court upon which the order appealed from was granted, which recited : “ And said Burns Company having failed to produce the papers specified in said order; and said Burns Company having failed tox appear by its agent and employee, John Y. Bowes, as directed in said order; and the defendant having appeared * * * and made application for a direction that said W. F. Burns Company produce said papers and appear by its said agent and employee, John V. Bowes ; and the plaintiff and said W. F. Burns Company having appeared in opposition to said application, * * * Ordered, that the W.

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pany appear before the Justice holding Special Term, Part II, by its vice-president and general manager, Walter F. Burns, and'by its agent and employee, John Y. Bowes, * * * and produce the documents specified in said order and submit to an examination as provided in said order; and that upon default thereof the- defendant may have an Order ew jpaHe adjudging said W. F.-Burns Company and said Walter F. Burns in contempt of court and imposing a penalty therefor.”

This appeal is taken upon the grounds that the Burns Company is not a.party to the action, and the orders were unwarranted; that if the. corporation could not be examined, then the order was a nullity; and that the. order requiring the Burns Company to produce Bowes is unauthorized; and that the order requiring the production of the papers is without authority.

These objections might be quite proper on a motion to vacate the original order or on appeal therefrom. The learned Special Term deemed that it had no power to reverse said order in this collateral proceeding, and, therefore, made this order man attempt to enforce the provisions of the former order.

It is true that the W. F. Burns Company is not a party of record to the action. It was the assignor of the plaintiff, and it is claimed to be the real party in interest. The corporation having appeared and submitted to. the jurisdiction, I do not see how the plaintiff is in any position to complain. So far as the provisions in regard to Bowes are concerned, the original order provided that a copy be served on the corporation and Burns - and on Bowes, or so many of them as could be found. It never was served on Bowes. He was a mere agent and hot an officer of the company, and is traveling somewhere in the United States. Inasmuch as the original order provided for service upon him which has not been had, I do not see how the company could be deemed in contempt for not producing him. As to the production of papers subdivision 7 of section 872 of the Code of .Civil Procedure expressly provides that, in case the party to be examined is a corporation, the order shall direct the examination of such officers or directors thereof whose testimony is material and necessary and the production of such books and papers. I think that so long as the original order stands it should be sup.ported so far as to require the production of the papers directed,

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but I do not think the production of the agent Bowes can be compelled, and in view of the fact that be was never served with the Original order as therein required, the order appealed from should be modified by striking .out the provision for his production, or any adjudication of contempt based on said non-production, and'as modified affirmed, without costs to either party.

Ingraham, McLaughlin, . Laughlin and Houghton, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.