Guinan v. Allan

New York, holding a warrant of attachment against the defendants, applied to the firm of Austin, Baldwin & Co., of New York, of which firm the appellant is a member, for a certificate under the provisions of section 650 of the Code of Civil Procedure. The certificate was furnished, setting .forth the fact that the firm had no property in their possession or control belonging to the defendants. The plaintiff then applied for and secured an order for the exami-' nation of the appellant under the provisions of section 651 of the Code: The appellant appeared before the referee and submitted to an examination, which examination was reduced to writing, subscribed and sworn to, and, with the report of the referee and the testimony, was filed with the clerk of' this court on the 28th day of November, 1898. During, the course of the examination the appellant referred to certain monthly statements between a firm in Montreal and the firm of Austin, Baldwin & Co., neither of which firms, so far as the testimony discloses,, has any connection with the-defendants. The appellant was asked if he would produce these-monthly statements, and refused to do so, whereupon plaintiff’s counsel asked the referee to declare witness in contempt. The referee reserved decision upon this point,- but afterward refused to hold appellant guilty of contempt and fixed a time for the signing of the testimony, the appellant subsequently appearing and signing the same as above stated. After the conclusion of the examination, and before the date set for the signing of the testimony, the plaintiff obtained an order to show cause at a Special Term of the Supreme Court why an order should not be made directing the witness to produce the monthly statements referred to in his testimony. Upon the hearing of the motion on the 23d day of December, 1898, an order was entered that “ the said Badcliffe Baldwin is ordered and directed, upon the service of due notice therefor, to produce before Andrew W. Gleason, Esq., Beferee, heretofore appointed, at such time and place as lie shall direct, or at such time and place as the proceedings before him will be adjourned, the monthly statements mentioned by said Badcliffe Baldwin in his testimony already takeii before said referee.”

Upon the merits of the order it is difficult to conceive of any possible right which the plaintiff has to an examination of a monthly statement of accounts between Austin, Baldwin & Co. and H. & A.

Allan of Montreal; the defendants, whose property is sought to be discovered, being J. & A. Allan of Glasgow, both the persons and the firms, according to the testimony of the appellant, being distinct. There is nothing in the moving affidavits which" show any relation between the Montreal and the Glasgow firms, and it was clearly never within, the contemplation of section 651 of the Code of Civil Procedure that in an examination in reference to the property of the defendant the court or the referee could enter into an inquiry as to the affairs of the witness wholly unconnected with the property ■of the defendant. Such a proceeding would be a violation of private fights, not to be tolerated in any well-regulated community, .and it is hardly to be 'wondered that the appellant should refuse to bring these statements before the referee..

It is provided by section 854 of the Code of Civil Procedure that where a judge or referee has been heretofore, or is hereafter, expressly authorized by law to hear, try or determine a matter, or to do any other act in an.official capacity, in relation to which proofs may be taken, or the attendance of a person as a witness may be required, a subpoena may be issued, by and under the hand of the judge or referee, requiring the person to attend, and also, in a proper case, to bring with him a book or paper. The referee appointed under the provisions of section 651 of the Code of Civil Procedure, at any time while the proceeding was within his control, might have issued'-a subpoena and required the attendance of the witness with the books and papers, but nowhere do we find any authority for the court, after having appointed a referee, to issue an order controlling either the referee or the witness. The court had exhausted its powers in the premises when it had appointed a 'referee, and the power'of the referee was at an end when the testimony had been taken and his report placedmn file with the clerk of the court. (See People ex rel. Jacobs v. Ball, 37 Hun, 245 .) Section 867 of the Code of Civil Procedure provides that “ a person shall not be compelled to produce, upon a trial or hearing, a hook of account otherwise than by an order requiring him to produce it, or a subpoena duces tecum” and it is further provided that such “ order may be made, as prescribed in this section, by a judge of the court, or in a special proceeding pending out of court before an officer, by the officer, or, in either case, by a referee duly appointed

in the cause and authorized to hear testimony.” This shows that the policy of the law is to place these matters in the control of the court having immediate jurisdiction of the question, and not to subject witnesses and others to the control of orders issued by courts of concurrent jurisdiction. The referee, who had jurisdiction of the appellant, and who was confronted by the refusal of the witness to produce, the monthly statements, did not see fit to make use of his power to compel the production of the same, and the Special Term had no power, after the referee had discharged his duties under the order appointing him and had ceased to have any control over the subject-matter, to revive the powers of the referee and to compel the witness to produce books and papers which the referee had not directed to be produced in the manner prescribed by section 854 of the Code. While it is no doubt true that the court, upon a proper application, might appoint a new referee, who would have the power to issue a subpoena duces tecum, this is a matter involving sound discretion. As was said in the case of Canavan v. McAndrew ( 20 Hun, 46 ), “ a judgment creditor is not permitted to harass his debtor by successive examinations in supplementary proceedings. He is-entitled to examine the defendant as fully as. may be once. After that it beco.mes a question of sound discretion. It is well settled that a second order will not be granted, as a matter of course. To secure it properly, the affidavit should disclose the first proceeding,, and give some good reason for again invoking the powers of the judge, such as subsequently-acquired property, or the like.”

The order appealed from should be reversed, and no further proceedings should be had, unless upon a new order appointing a referee.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.