Franklin v. Judson — 88 N.Y.S. 904

Majority

p. 904

FRANKLIN et al. v. JUDSON.

(Supreme Court, Appellate Division, First Department.

June 24, 1904.)

Headnote

1. Witnesses—Subpoena Duces Tecum—Effect.

A subpoena duces tecum gives counsel no right to inspect the books ordered to be produced, but by it the witness is only required to produce his books so that he can, by reference to them, answer questions pertinent to the inquiry being conducted before the court.

2. Same—Appeal—Presumption.

On appeal from an order refusing to vacate a subpoena duces tecum, the court cannot presume that the court before which the examination is pending will not perform its duty in limiting it to subjects germane to the investigation.

Appeal from Special Term, New York County.

Action by William B. Franklin, and others against Cyrus Field Judson, in which Joseph H. Hoadley was subpoenaed as a witness, and appeals from an order denying a motion to vacate the subpoena. Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

George S. Graham, for appellant.

Edmund L. Mooney, for respondent.

This appeal seems to proceed upon the theory that the subpoena requires the appellant (the witness) to produce his books and papers for the plaintiff’s inspection. The subpoena does not so read, nor is such its office. The appellant can be subpoenaed to produce his books, only so that he can, by reference to them, answer questions pertinent to the inquiry being conducted before the court. It. gives no right whatever to the inspection of the books by the plaintiff’s counsel.

It is claimed that the books are to be used for the purpose of getting evidence in respect to other, litigations, and not for any purpose connected with the examination before the court. The court before which the examination is pending will see that it is limited to the subjects germane to the investigation being carried on, and we cannot say that the court will not perform its duty in this respect. Indeed, we believe that it will, and that the examination will be conducted solely with a view to a discovery of property of the defendant, and not for discovery of evidence relating to another controversy. The rights of the witness can, and undoubtedly will, be completely protected by the court below.

The order, appealed from should be affirmed, with $10 costs and disbursements. All concur.