Opinion
April 6, 1932.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, Fourth District.
The action was brought to recover the sum of $425.23 for goods sold and delivered by the plaintiff to the defendant. Annexed to and made part of the complaint was an itemized schedule consisting of 422 items. The defendant interposed an answer denying the allegations of the complaint, and also specifically denying each and every item of the schedule. Plaintiff herein deemed it necessary to examine the defendant before trial, and, therefore, issued a subpoena and notice of examination on June 24, 1931, requiring the defendant corporation, by Mary Taranto, its vice-president, to appear for examination. These papers were duly served upon the said corporation, by such officer personally, and a copy thereof was duly mailed to the defendant's attorney. Pursuant to both subpoena and notice, the defendant corporation, by Mary Taranto, duly appeared. After a preliminary discussion, it was determined that said Mary Taranto had no knowledge of the facts sought by plaintiff in this examination before trial.
It was orally agreed, therefore, by the attorneys representing both parties, that the defendant would produce Bartolo Taranto, its president, for examination before trial, pursuant to the notice of examination and subpoena heretofore duly served upon Mary Taranto, the defendant's vice-president, the said submission and examination of the defendant by Bartolo Taranto, its president, to be in lieu of the examination of the said defendant by Mary Taranto, its vice-president.
John E. Bleibtrey, for the appellant.
Morris Wolf, for the respondent.
It is immaterial whether the witness was or was not chargeable with contempt. The statute authorizes the striking out of the answer as a punishment in addition to any punishment for contempt. (Civ. Prac. Act, § 405.) That defendant was properly subject to punishment under the circumstances here disclosed follows from our decision in Minneapolis, St. P., etc., R. Co. v. Alcohol Fuel Molasses Co. ( 129 Misc. 908), and since its answer consisted wholly of denials which put in issue matters intended to be established by the examination there is no constitutional objection to the imposition of the penalty. Defendant is punished, not for contempt, but for the attempted suppression of evidence material to plaintiff's case. (Feingold v. Walworth Bros., Inc., 238 N.Y. 446.)
Judgment and order affirmed, with twenty-five dollars costs.
All concur; present, LYDON, LEVY and FRANKENTHALER, JJ.