Opinion
January Term, 1896.
Order reversed, with ten dollars costs and disbursements, and motion denied.
A clear case was made out for the examination of the defendant's president. It is true that the plaintiffs have in their possession the written contracts upon which they sue, but they have no proof that Yuengling and Moser were authorized by the corporation to execute these contracts on its behalf. Nor have they proof of the assumption by the defendant of such contract obligations. The application was not in the least speculative. It was a proper effort to secure legal evidence, and was fully justified by a declaration of the defendant's president to the effect that the contracts in question had been assumed by the defendant company. A proper case was also made out for the production by the witness of books and papers as authorized by the seventh subdivision of section 872 of the Code of Civil Procedure. The respondent is in error in supposing that the plaintiffs' object was a discovery or an inspection of these books and papers. No such discovery or inspection is authorized under these proceedings. What the witness is required to do is simply to produce the books and papers upon his examination. The effect of the order in this regard is the same as a subpæna duces tecum upon the trial. What the plaintiffs would be permitted to do upon the trial under a subpœna duces tecum they may do now under this order. No more, no less. Their object is to prove their case by the testimony of the witness, and by such documentary evidence as he may produce under the order. This is plainly a case where the proof of authority and assumption must in the main be documentary; and it was entirely proper to require the witness to produce such documentary evidence, not as already suggested for "inspection," but as an adjunct to the examination of the witness, and to enable the plaintiffs to put the documentary evidence in as a part of such oral examination. The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the motion to vacate the order should be denied. Upon the settlement of the order a date can be fixed when the examination under the original order should proceed. Van Brunt, P.J., O'Brien and Ingraham, JJ., concurred.