Opinion
March, 1913.
Goodale Hanson (Bert Hanson, of counsel), for appellants.
Wahle Kringel (H. Lionel Kringel, of counsel), for respondent.
The order allowing the examination of defendants before trial was supplemented by a subpoena duces tecum in obedience to which defendants' books were produced in order to make the examination effective, inasmuch as the evidence desired could not in all likelihood be given except by the witness refreshing his recollection by reference to them. Defendant said he found an entry of an item seemingly relevant to the inquiry but stated that it did not refresh his recollection. The entry was in the Arabic language and counsel for the plaintiff requested the defendant to translate it; but the defendant refused. The court then directed the defendant to translate it but, on advice of counsel, the defendant again refused. The court thereupon adjudged the defendant guilty of contempt. This appeal is taken from that order.
We think that the defendant was justified in refusing to answer because the defendant was within his rights. The question was in effect an effort at inspection and discovery of defendants' books and not one incidental or proper to the examination of a party before trial, under section 872 of the Code. Rosenbaum v. Rice, 36 Misc. 410; Bloodgood v. Slayback, 62 A.D. 315.
It has been held by practically the entire trend of judicial decisions that the books produced on such examination are only required to refresh the memory of the witness so as to render this examination effective but not for the purpose provided under sections 803-809 of the Code of Civil Procedure. Matter of Thompson, 95 A.D. 542; Boeck v. Smith, 85 id. 575.
The plaintiff in a proper case shown may have the right to inspection of the books, but such was not within the purview of the order under which this examination was taken, and plaintiff was without right therefore to secure it by indirection.
Order reversed, with ten dollars costs and disbursements.
LEHMAN and GERARD, JJ., concur.
Order reversed.