p. 602Patrick J. Dunn, Appellant, v. The New York Edison Co., Respondent.(Supreme Court, Appellate Term,Headnote
Evidence — Material paper in court — Attorney may be compelled to produce it — Contempt.Where defendant’s doctor induced plaintiff to execute a general release for all claims for injuries received in defendant’s employ upon a promise of the payment of his wages while unable to work, the plaintiff, in an action to recover wages under the agreement, is entitled to have the release put in evidence, and where the defendant’s attorney admits that said release; which one of defendant’s officers served with a subpoena duces tecumi to produce testified he was unable to find; was in court and in his possession, the court has power to order its production and to punish a disobedience by commitment for contempt.
Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of Hew York, second district, borough of Manhattan.
Gennert & Gennert, for appellant.
Beardsley & Hemmens, for respondent.
While in the defendant’s employment, the plaintiff was injured and was sent by the. defendant’s superintendent to the defendant’s doctor for treatment. The doctor induced the plaintiff to execute a release to the defendant of all claims for his injury, and in consideration thereof promised the plaintiff that he would receive his wages while unable to work. This action was brought to recover wages under this agreement. The doctor testified that he had no recollection of making such a promise, and the defendant denied his authority to do so. TJpon the trial, one of the defendant’s officers was called by the plaintiff and asked to produce the general release. ■ He had been duly served with a subpoena duces tecum to produce it, but testified that he was unable to find it. The defendant’s attorney, then in court, was called to- the stand by plaintiff’s counsel
p. 603and after numerous evasive answers finally admitted that the release called for by the subpoena was in court and in his possession. The trial justice was then asked to order the attorney to produce the paper and the court replied:
“ I have no power,” to which ruling an exception was taken. This was error. The court had the power and the production of the paper should have been ordered, and, in default of its production, the person having the paper under his control should have been committed for contempt.
Boynton v. Boynton, 25 How. Pr. 490 ; affd., 41 N. Y. 619 ;
Stone v. Mansfield, 27 Misc. Rep. 560 . The release was material. It was the consideration for defendant’s promise. Its re* citáis, it is claimed, tended to prove the contract sued on, and to establish the doctor’s authority.
Scott and Blanchard, JJ., concur.
Judgment reversed and'new trial ordered, with costs to appellant to abide event.