Averell v. Barber — 44 N.Y. St. Rep. 540

Majority

p. 540

William M. Averell, Resp’t, v. Amzi L. Barber et al., Deft’s.

(Supreme Court, General Term, First Department,

Filed Feburary 18, 1892.)

Headnote

Subp.cejta—Duces tecum.

Where an action brought against a corporation and individual defendants to recover profits realized by them from the use of patents which really belonged to plaintiff has been dismissed as to the corporation, the only question remaining is as to the profits realize 1 by the individual de

p. 541

fendants, and a subpoena requiring the corporation to produce its books should be vacated, as the contents oí such books could have no bearing on the question, but only show the secrets of the corporate business, with which the plaintiff has no concern.

Appeal by the Barber Asphalt Paving Company from an •order denying its motion to vacate a subpoena duces tecum.

Wm. IK. lViles and Tim. IK Niles, Jr. (A. S. Worthington, of counsel), for app’lt; G. M Eushmore, for resp't

This action was brought by the plaintiff, for ■.the benefit of the American Asphalt Paving Company and its stockholders, to recover against the defendants, Barber, McLean, Lang-don, the Barber Asphalt Company, and others, certain large profits realized by them from the use of certain patents in said complaint alleged, whicn rightf ully belonged to the said American Asphalt Company After a trial of the case a decree was entered which provided, among-other things, that the defendants, Barber, McLean, Langdcn and the Barber Asphalt Company, severally account for and pay over the profits made by them, or either of them, directly or indirectly, from or by means of the De Smedt patents, or either of them, or by means of either of the reissues thereof, and a referee was appointed in said decree to take the account. Upon appeal to the general term this judgment was reversed so far as the Barber Asphalt Company was concerned, and the complaint dismissed as to it. Subsequently the plaintiff proceeded with the account before the referee, and caused a subpoena to be issued to the Barber Asphalt Company to produce its books and papers and contract before the referee. " A motion was made to vacate this subpoena, which was denied, and from the order thereupon entered this appeal is taken. This motion ■seems to have been based upon two grounds, one of which was that, upon the reference, there was no necessity for the examination of the books of the company,1 and the other, that the supreme court had no jurisdiction of the questions involved in this action. Without considering the last question mentioned, we think the first objection is well taken. Whatever might have been the propriety of having the books of the Barber Asphalt Company before the referee had the decree remained as originally entered by the learned' judge who tried the case, that decree having been reversed so far as that company was concerned, and the action dismissed as to it, the only question remaining to be investigated by the referee was.the profits of Barber, McLean and Langdon, made by means cf the De Smedt patents, or either of the reissues .thereof With this question the Barber Asphalt Company had ¡absolutely nothing to do and the secrets of their business should not be brought into a controversy between the plaintiff and outside parties and the question as to what contracts it had made, •or what profits it had realized, was of no importance whatever in the investigation of the profits of-the defendants therein named. We think that a subpoena of the description issued'n this case was, under the circumstances, oppressive in - the extreme, and was ¡a perversion of the process of the law. The plaintiff having been

p. 542

ad] udged to have no cause of action or right to inquire into the-methods of business or profits of the Barber Asphalt Company, an inspection of its books could have been sought only for the purpose of discovering the business of the company, in which the plaintiff had no interest.

We think the order appealed from should be reversed, with ten dollars costs, and disbursements of this appeal, and motion granted.

All concur.