Zeh v. Glaskin — 54 N.Y. Super. Ct. 351

Majority

p. 351

CHARLES M. ZEH, Appellant, v. EDWIN E. GLASKIN, Respondent.

Headnote

Production of boohs, etc., on trial, party entitled, to—Production by party compelled by subpoena duces tecum—Counsel compellable to produce.

On the trial of an action where the nature of the issues requires the defendant to account for the disposition of moneys placed in his hands by

p. 352

the plaintiff and held by him under the obligation of a trustee for the plaintiff, the plaintiff has a right to the production of books kept by the defendant which prima facie contain entries as to the receipt and disbursement by him of such moneys.

Such production may be enforced through a subpoena duces tecum.

If they have been placed in counsel’s hands, the counsel may be verbally directed by the court to produce them, and he would be bound to obey. The defendant in the case at bar who was subpoenaed duces tecum, testified that the books which he was subpoenaed to produce were in the hands of counsel.

Held, that plaintiff was entitled to a direction that counsel produce them.

Before Sedgwick, Ch. J., and Freedmah, J.

Decided March 14, 1887.

Appeal by plaintiff from judgment dismissing the complaint entered upon the findings of a referee.

The facts sufficiently appear in the opinion.

Charles B. Meyer, attorney, and of counsel for appellant, on the questions considered in the opinion, argued :

The referee erred in his ruling that the defendant could not be compelled by a subpoena duces tecum duly served to produce certain books and papers then stated to be in the hands of his counsel. Bonesteel v. Lynde, 8 How. 226 , 352; Shelp v. Morrison, 13 Hun, 110 , and other cases cited in Bailey's Trial Pr. p. 83; Code of Civil Pro., §§ 852, 867.

Ira Shafer, attorney, and of counsel for respondent, argued that the testimony of the witness showed that he did not have and never had books or papers of the character called for; and that therefore the ruling of the referee, to which exception was taken, did not harm the plaintiff ; the defendant had nothing to produce.

The nature of the issues required the defendant to account to the plaintiff

p. 353

for the disposition of moneys placed in his hands by the plaintiff. In holding these moneys and in disposing of them the defendant was under the obligation of a trustee.

In the course of the trial the plaintiff called the defendant as a witness and asked him to produce certain books, that had been described in a subpoena duces tecum, that had been served upon the witness. It appeared prima facie that the hooks referred to contained entries as to the receipt and disbursement by the witness of the moneys in question. The witness did not produce them and said they were in the hands of his counsel. The counsel for plaintiff asked the referee to direct the defendant counsel to produce these books. The defendant’s counsel objected on the ground that the witness could not be compelled to produce them by subpoena duces tecum. The referee sustained the objection, and refused to make such a direction. To this plaintiff’s counsel excepted.

It seems to me that the plaintiff had a right to the production of books in which his trustee had kept an account of moneys in his hand as trustee, and that this right could be enforced through a subpoena duces tecum, and further that the court might make a verbal direction that the counsel of defendant should produce the books which the counsel would be hound to obey. In this case, the referee should have made such a direction. As it cannot be determined what effect upon the trial of the issues proof of the contents of the books would have had, there should be a new trial.

Judgment reversed, order of reference vacated and a new trial ordered with costs to abide- the event.

Fbeedmax, J., concurred.