Fenton v. Dempsey — 10 N.Y. St. Rep. 733

Majority

p. 733

John T. Fenton, as Receiver, etc., v. John Dempsey et al. and The Union Square Printing Co.

{Supreme Court, Special Term, New York County,

Filed October 21, 1887.)

Headnote

Examination before trial—Production of book by executive officer of corporation—Code Civ. Pro., § 872, sued. 7.

The treasurer of the defendant corporation was directed by an order for the examination of said defendant corporation to appear on its behalf and be examined as a witness and produce certain books kept by said defendants. In the examination of the witness under the order, he declined to produce the books on the ground that they were not in his possession or under his control, and claiming also that they being in possession of the defendant corporation, the witness could not be compelled to produce them. Held, that the hooks must be produced as directed, not necessarily for inspection, but in order that witness, by reference to them, may testify as the order directed.

John McCrone, for motion; Louis P. Levy, opposed.

In this action George D. Carroll, as treasurer of the Union Square Printing Company, a defendant therein, was directed, by an order for the examination of said defendant corporation, to appear on its behalf and be examined as a witness before trial and to produce certain books kept by said defendants, among others the stock book and minute book. In the examination of said witness under the order, he declined to produce the books on the ground that they were not in his possession or under his control, and claiming also that they being in possession of the defendant corporation, witness could not be compelled to produce them. It was admitted that the witness could not give the testimony desired by plaintiff, but that the books of defendant corporation, if produced, would enable him to do so.

Plaintiff’s counsel thereupon moved that witness be compelled to produce the books desired, or in default of Ms so doing that he be attached.

Held (Van Brunt, P. J„), that the motion should be granted. The books must be produced as directed, not necessarily for inspection, but in order that witness, by reference to them, may testify as the order directs.