Opinion
May 31, 1907.
Louis W. Stotesbury, for the appellant.
William Bell Wait, Jr., for the respondents.
Present — INGRAHAM, LAUGHLIN, CLARKE, SCOTT and LAMBERT, JJ.
Whenever it appears that a party under examination before trial cannot testify without reference to his books and papers it is competent to compel their production by subpoena duces tecum. ( Gee v. Pendas, 87 App. Div. 157.) Unless this could be done the attempted examination would in many cases be defeated. Ordinarily the occasion for the issuance of such a subpoena does not arise until the examination has so far proceeded as to demonstrate that the presence of the books and papers is necessary in order to enable the party under examination to testify. ( Ryan v. Reagan, 46 App. Div. 593.) Where it appears, however, as it does in this case, that the nature of the matters concerning which the party is to be examined, and his general attitude toward the examination are such that it is reasonably certain that he will not or cannot answer the questions to be propounded to him without reference to his books, there is no reason why the subpoena should not issue at once. The subpoena should not, therefore, have been wholly vacated. It was, as we think, too broad, and should have been modified so as to limit its operation, in the first instance at least, to the books, papers, documents and records in defendants' custody or control showing the persons with whom defendants had the transactions set forth in the moving affidavit, with the date of each transaction and the price or prices at which each was effected. If, as the examination proceeds, the necessity is developed for the production of other books or documents another subpoena may be issued.
The order appealed from will be modified in accordance with the views herein expressed and as modified will be affirmed, without costs to either party.
Order modified as directed in opinion, and as modified affirmed, without costs.