
    Clement Heerdt et al. plaintiffs, vs. Henry A. Wetmore et al. defendants.
    1. A referee has the power to adjudge that a party examined before him is guilty of a contempt.
    2. Although the court retains its inherent original power, concurrently with a referee, to punish for a contempt of court, in a matter pending before him, he ought first to pass upon the question of contempt, even if he reports his facts, conclusions and other necessary matters to the court, in order that the attachment may issue from it. Per Moncrief, J.
    3. A referee, having heard testimony, in an action committed to him to hear and determine, it is his duty to render a decision. Until some determination has been made, by him, the court cannot review his proceedings.
    
      4. Where a witness,-at the time of a direction to produce books, is not in a condition to comply with it, and no reasonable time, or_any time, is allowed within which he is to do so; but the order is in the present tense and absolute “ to produce a bank book and a check bookwithout any prior notice of the necessity then to produce them; and he has not been summoned to produce them, and swears he cannot at that time and place produce them before the referee; he cannot be punished for a contempt in not producing the books.
    6. It is highly improper for counsel to interrupt the orderly proceedings of a court of justice by instructing a witness not to answer questions. The right to refuse to answer resides with the witness, alone, and its exercise is at his personal peril.
    6. For such conduct, if not overlooked, or excused, as not an intentional contempt of court, it is the duty and within the power of the referee to adjudge such counsel to he guilty of disorderly or contemptuous behavior, to issue an attachment and commit him.
    7. The authority to punish for such misconduct pertains solely and exclusively to the court in which it occurs in its immediate view and presence; and cannot be delegated to a judge of this court, .
    (Before Moncrief, J. at special term,
    June, 1864.)
    Three applications are made on behalf of the plaintiff in this action; first, "for an order that an attachment issue herein against the defendant Morrison, for contempt of court, in refusing and omitting to produce and deposit with Philo T. Buggies, Esq. the referee herein, the check book and bank pass book of H. A. Wetmore with the Shoe and Leather Bank, * * and in refusing and neglecting to produce and deposit with said referee the individual books of account of the defendant Wetmore, as well as the check book of the defendant Morrison, with the Orange Bank;” second, “why an attachment should not issue against John M. Pinkney, the attorney and counsel for the defendant Wetmore, for contempt of court, in advising and instructing said defendant to refuse to answer the questions and produce the check hook mentioned in the certificate of the refereeand third, “ for an order that an attachment issue herein against the defendant Henry A. Wetmore, for contempt of court, in refusing, on his examination before the said referee, to answer the question in respect to the check mentioned in the certificate of the referee, and in refusing to produce the same, although directed by said referee to produce' the same,” &c.
    The witness Morrison was not required by a subpoena duces tecum to produce the books alleged to be in his possession, &c.; while under examination he was directed to produce some books, and it appears that this order was complied with; at a subsequent day he was ordered to produce other books “in reasonable time,” and in response thereto, he stated that he had none other in his possession or under his control; the referee thereafter directed that the defendant Morrison produce forthioith, and deposit with the referee, certain other books, and they were brought within the presence of the referee ; and he offered to make oath that those ten produced were the only books in his possession or under his control. Finally, an order is made to produce a bank book and check book not then in the possession of the witness, and not within his control, save at a place other than where such examination was being taken ,' it also appearing that such books were taken away by the counsel for the witness, who was present before said referee, and was not directed to produce them. No time was given in which to obey this direction.
    The counsel, Mr. Pinckney, instructed and advised his client, White, under an examination as a witness, not to answer certain questions put to him, &c.
    The defendant Wetmore, being under examination, as a witness, was asked to produce a certain check which had been in his possession, and undoubtedly was then under his control, if not upon his premises, elsewhere than at his place of examination, and he answered that he could not do so, and thereupon the counsel for the plaintiff moved that the referee instruct the witness to produce the check, and the referee so instructed him; the witness replied that he could not produce it.
    
      A. F. Smith, for the motion.
    
      I. M. Pinkney, opposed.
   Moncrief, J.

The learned referee has not in either instance adjudged that the party was guilty of contempt; he has the power so to do ; (§ 2 Code;) the propriety of so doing is illustrated by the proceedings which have taken place in his presence, as narrated in his report. It has been held that the court retains its inherent original power, concurrent with the referee, to punish for a contempt of court in a matter pending before a referee appointed by it; (Burnett v. Phalon, 11 Abb. Pr. R. 163, and Byas v. Smith, 4 Bosw. 679;) hut, generally, it would at least be useful that the referee should first pass upon the question, even if he reports his facts, conclusions, &c. to the court, in order that the attachment may issue from it. Whether, when an action has been referred, the court should retake it until the function of the referee has ceased by a final disposition by him, need not now be determined, as the counsel for the respective parties submitted to the jurisdiction of the justice at special term. A referee, under our present system, bears no resemblance to the former master in chancery; the latter, at best, was but quasi judicial; his duties were generally purely ministerial; his acts and whole function was as an auxiliary or amanuensis of the court of which he was acting as an officer; the former, however, is by statute possessed of the like power as the court in which the action is brought. (Code, § 272.) Having heard testimony in an action committed to him to hear and determine, it is his duty to render a decision. (O'Brien v. Bowes, 4 Bosw. 657.) Until some determination has been made by the referee, the court cannot review his proceedings. The witness Morrison was not in a position, at the time of the direction “ to produce the hooks,” to comply with it, and no reasonable time, of any time, was given within which he could obey the order ; it was present and absolute, “ to produce a bank book and a check book.” Of the necessity, then, to produce, he had not been notified ; to produce which he had not been summoned : and which he distinctly averred, under oath, he could not at that time and place produce before the referee. Whether an oral summons to a witness under examination, to produce at a future time books and papers in his possession, or under his control, of itself is sufficient to predicate a committal for contempt in case of disobedience, need not now be determined; my present conviction would lead me to doubt any other mode of obtaining them than by the agreement of the witness (while in court) to produce them, in ob'edience to the oral directions or by the usual method of a subpoena duces tecum.

It is highly improper for counsel to interrupt the orderly proceedings of a court of justice by instructing a witness not to answer questions. The right to refuse to answer resides with the witness alone, and its exercise is at his personal peril. The conduct of counsel in this case, therefore, must be assumed to have been overlooked, or excused," as not intended to be a contempt of court; otherwise it was the duty of the learned referee, then and there, to have adjudged the counsel to be guilty of disorderly or contemptuous behavior committed during the sitting before such referee, in his immediate view and presence, and directly tending to interrupt the proceedings, or to impair the respect due to his authority, and to have issued an attachment and committed him. The authority to punish for such misconduct pertains, solely and exclusively, to the court in which it occurs, in its immediate view and presence ; and .the power can no more be delegated to a judge of this court than it could legally be assumed 'by a judge of some other tribunal.

The same remarks made relating to Mr. Morrison apply to the application against Mr. Wetmore ; the check was not then in court, and he stated, in his examination, and now avers, in . an affidavit, that he gave as a reason for its non-production, ' that it was not then in his possession or under his control.

The motions are denied, with ten dollars costs.  