Zeh v. Glaskin

22 Jones & S. 351

• Court: The Superior Court of New York City
• Decided: March 14, 1887
• Status: Published

Opinion

By the Court.—Sedgwick, Ch. J.

The nature of the issues required the defendant to account to the plaintiff for the disposition of moneys placed in his hands by the plaintiff. In holding these moneys and in disposing of them the defendant was under the obligation of a trustee.

In the course of the trial the plaintiff called the defendant as a witness and asked him to produce certain books, that had been described in a subpoena duces tecum, that had been served upon the witness. It appeared prima facie that the hooks referred to contained entries as to the receipt and disbursement by the witness of the moneys in question. The witness did not produce them and said they were in the hands of his counsel. The counsel for plaintiff asked the referee to direct the defendant counsel to produce these books. The defendant’s counsel objected on the ground that the witness could not be compelled to produce them by subpoena duces tecum. The referee sustained the objection, and refused to make such a direction. To this plaintiff’s counsel excepted.

It seems to me that the plaintiff had a right to the production of books in which his trustee had kept an account of moneys in his hand as trustee, and that this right could be enforced through a subpoena duces tecum, and further that the court might make a verbal direction that the counsel of defendant should produce the books which the counsel would be hound to obey. In this case, the referee should have made such a direction. As it cannot be determined what effect upon the trial of the issues proof of the contents of the books would have had, there should be a new trial.

Judgment reversed, order of reference vacated and a new trial ordered with costs to abide- the event.

Fbeedmax, J., concurred.