14 How. Pr. 26 | The Superior Court of New York City | 1857
The plaintiff contends that the court cannot, under its power to compel a discovery of books and papers, as granted by the Revised Statutes and the rules under
That as a plaintiff has now the right to examine the adverse party as a witness, he should be allowed to compel the production of the books and papers of a corporation when a party, by a subpcena duces tecum, served on its officer, who is the legal custodian of its books and papers.
The respondent .insists that the order is not appealable; that it neither involves the merits, nor affects a substantial right; that, assuming the plaintiff to have a right to the evidence, the order made does not question the right, but at most compels the plaintiff to proceed under the Revised Statutes, or the Code, to compel a discovery and production.
That the books and papers, are not the property of the witness, and he has no such custody of them as gives him the right, or makes it his duty to remove them from the office of the company.
This court has power to compel the defendant in this action, to discover and produce books and papers in its possession and control, relating to- the merits of the action, and necessary to enable the plaintiff to prepare for trial. If the order is disobeyed, the court may strike out the answer, and render such judgment as would be proper in case no answer had been interposed. Gould agt. M‘ Carty, 1 Kern. 575.
In determining whether the order appealed from is erroneous, the conclusion of the court should not be affected by any such consideration, as that the plaintiff may be remediless, or deprived of the means necessary to maintain an action, if the particular instrumentality employed, in this instance, to procure testimony, should be held not to be a matter of right.
An order refusing an attachment against a witness disobeying a subpcena requiring him to produce documentary evidence, material to the party subpoenaing him, and which it is his duty to produce, is an appealable order.
A party has a right to have the remedies provided by law, to secure the attendance of material and necessary witnesses, or the production of material and necessary evidence, enforced in
An order which, without fault or laches on his part, prevents those remedies being made effectual, necessarily involves the merits, and affects a substantial right.
The important question presented by this appeal, is : was it the duty of the witness to produce the books and papers which he was required to produce under the subpoena'duces tecum ?
He was president of the corporation which is the party defendant in this action.
He testified that he did not know where “the certificates” were, and that they were not under his control.
He also testified that the book of minutes of the board of directors was in their possession, and that he thought he had no right to take it out of the office, and was so advised by counsel.
The papers on which the order appealed from was made, create no doubt as to the truth of these statements.
In the case of The Bank of Utica agt. Hillard, 5 Cowen, 153, Colling, a clerk of the bank, was subpoenaed, duces tecum, to bring and produce on the trial, certain books of the bank. The judge at the trial, refused to require him to produce them, holding that he was not the proper officer to be called on for that purpose, and intimated that the president or cashier should have been subpoenaed.
The court, on a motion for a new trial, held that whether Colling was bound to produce them, depended upon the question, “ whether they were in his possession, or under his control. He was a mere clerk of the plaintiffs, and, in that character, had no such property in, or possession of the books, as imposed the obligation to bring them.” Id. 158. The opinion was intimated that they were under the control of the cashier, who might forbid their removal, or place them beyond the reach of the witness.
A new trial having been granted, the cashier was required by a subpoena duces tecum, to produce the books on the second trial; not having done so an attachment against him was moved for and denied.
The proper place for the books and papers of a corporation, is the office where the business to which they relate is transacted.
No officer of the corporation, as such, has power or authority, on general principles, to use or control them, except in such manner, and at such place, as may be requisite to the proper performance of the duties imposed upon him by the corporation.
He has no right by virtue of his position and office, and no obligation is imposed upon him by the service of such a subpoena, to remove the books and papers of his principal from the office in which they are required to be kept.
It is generally as important to third persons, as to any officer of a corporation, and often of more importance, that its books and papers should not be subjected to the hazard of being lost, or injured, by being taken to a place of trial, and that they should be at all times retained in its office, for use and reference there. Very serious consequences might result, if its officers were held to have the right, and to be under an obligation, to carry them to any part of the state, in obedience to a subpoena duces tecum:
To hold that such a consequence results from a change in the law which gives to either party to an action the right to examine the other, in the absence of any statutory provision to that effect, and while ample remedies exist to compel the production and inspection whenever the latter may be necessary, of all papers essential to establish a cause of action or defence, would be dangerous as a precedent, and is not warranted by any authority that has been cited, or by an^ considerations which have been addressed to us.
The order must be affirmed, with costs.
