Guggenheim v. Reinhardt

123 N.Y.S. 950

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 24, 1910
• Status: Published

Opinion

GUY, J.

The plaintiff appellant was an employé of a firm of which the defendant is a surviving partner, and the action is brought to recover a balance of salary alleged to have become due to plaintiff, but withheld by the employers under an agreement by which a part of plaintiff’s salary was to be paid weekly and the balance paid in a lump sum at the end of each year. Plaintiff served upon defendant a notice to produce the books of the firm for the purpose of showing entries in corroboration of plaintiff’s evidence as to the terms of the hiring and the methods of payment. Defendant refused or failed to produce the books. Plaintiff then sought to introduce secondary evidence of their contents, and under objection this evidence was excluded; the court holding that section 867 of the Code required the plaintiff to serve a subpoena duces tecum, or an order of the court directing the production of the books, and plaintiff, having failed to do so, was not entitled to introduce secondary evidence of their contents.

The learned justice has evidently misconstrued the purpose of this section of the Code, which is to afford a method by which the actual production of books or documents in court may be obtained where a litigant is not willing to rely upon secondary evidence. The section was not intended to modify the rule of evidence that, where notice to produce books or documents has been duly served, failure to comply with such notice renders secondary evidence of their contents admissible, if relevant or material to the issues involved. It was error, therefore, to exclude secondary evidence of the contents of the books, and such error was prejudicial to the defendant.

The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.