Foster v. Wait — 136 N.Y.S. 209

Majority

p. 209

FOSTER v. WAIT.

(Supreme Court, Appellate Division, First Department.

June 28, 1912.)

Headnote

Witnesses (§ 21*)—Contempt.

In an action for the dissolution of a partnership, a party who refuses to obey a subpoena duces tecum issued by the referee directing the production of -partnership books and papers, who refuses to answer material questions, and who includes abusive, violent, and improper matter in affidavits and proceedings before the referee, should be punished for contempt.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 37-41; Dec. Dig. § 21.*]

•For other cases see same topic & 5 nvmbeb In Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Special Term, New York County.

Action by George H. D. Foster against John C. Wait. From order denying a motion to punish defendant for contempt, plaintiff appeals.

Reversed, and motion granted.

p. 210

See; also, 146 App. Div. 933 , 131 N. Y. Supp. 1115 .

■ Argued before INGRAHAM,. :P. J., and LAUGHLIN, CLARKE, MILLER, and DOWLING, JJ.

Chase Mellen, of New York City, for appellant.

Charles A. Winter, of New York City, for respondent.

In an action for the dissolution of a copartnership between plaintiff and defendant in the practice of law, an interlocutory judgment was entered August 29," 1911, whereby, among other things, a referee was appointed to take and state the accounts of the partners, and each of them was ordered to “attend from time to time, as may be directed by the said referee, with such books and papers of said partnership as shall be deemed necessary, to be examined under oath as the said referee shall direct.” Acting thereunder, the referee issued his.subpoena duces tecum, directing the production of certain books and papers by. defendant before him, and it was duly served upon defendant, who has utterly failed to comply therewith. His refusal to obey the mandate of the court has been deliberate and defiant. It is in line with his contumacious refusal to answer material- questions, and with the ab.usive, violent, and improper matter which has found a place both in his affidavits and in his proceedings before the referee.

The order will be reversed, with $10 costs and disbursements, and the motion to punish defendant granted, with $10 costs, but with leave to: defendant to purge himself of. his contempt by obeying the subpoena duces tecum, and answering the questions as to the disposition of the item of $1,00.0 which he has refused to explain. All concur.