Holtz v. Schmidt
The Superior Court of New York City
Appeal from an order granting an inspection, &o., of defendants’ books. During the trial of this action by a referee, the defendant Schmidt was subpoenaed, duces tecum, to pro dnce the books of account of the defendants.
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Appeal from an order granting an inspection, &o., of defendants’ books. During the trial of this action by a referee, the defendant Schmidt was subpoenaed, duces tecum, to pro dnce the books of account of the defendants. Failing to produce them, a motion was made to punish the witness for the disobedience, which motion was denied by the referee, on the ground that the production of the books, for the purpose indicated by the plaintiff, at the trial, would not entitle the plaintiff to inspect them. A motion was then made, upon the petition of the plaintiff, to the special term, for an order…
1Opinion of the Court
By the Court.—Monell, J.
The referee was probably premature in deciding that the production of *30the books at the trial, would not entitle the plaintiff to inspect them. The proper course would have been, to have compelled the production of the books, and then to have determined as to their competency as evidence.
I took occasion in Central National Bank v. Arthur, 2 Sweeny, 194, to fully examine the question of the power of the court (and the referee now has the same power as the court), to compel, by subpoena .duces tecum, the production by a party of his books or papers, and the conclusion in…
2Cases cited2 opinions
- Pegram v. CarsonThe Superior Court of New York City · 1860
- Central National Bank v. ArthurThe Superior Court of New York City · 1870