
    Fenlon v. Dempsey et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 23, 1888.)
    1. Contempt—What Constitutes-—Failure to Produce Books—Burden of Proof.-
    On trial of an order to show cause why defendants should not he punished for contempt in failing to obey an order to produce certain books of a corporation of which they are officers, the corporation being required by law to keep such books, there is a presumption that they have been kept, and the burden is on defendants to show that the books are not iñ existence, or not under their control.
    2. Costs—Extra Allowance—Counsel Fees.
    The amount of a counsel fee to be allowed plaintiff’s attorney, as indemnity for legal expenses incurred by reason of defendants’ refusal to obey a subpoena duces tecum, being matter of proof, and not of discretion, the allowance of a certain-amount, without proof, is reversible error.
    Appeal from judgment on report of referee.
    Argued before Van Brunt, P. J., and Brady and Bartlett, JJ.
    
      Abram Kling, for appellants. John McCrone, for respondent.
   Van Brunt, P. J.

On the 10th of November, 1887, an order was made-by Mr. Justice Barrett that the Union Square Printing Company, a corporation, be examined, and its deposition taken in this action, pursuant to sections 872, 873, of the Code of Civil Procedure; and, for that purpose, that John Dempsey, as president, and George D. Carroll, as treasurer, of the defendant corporation, be examined, and produce, at the time mentioned in said order, the book or books of the defendant corporation, showing the ownership and transfer of stock therein, and its business ledger or blotter, as well as its by-laws and books, etc. This order was duly served upon the defendants, together with a subpoena duces tecum. The defendants failed to appear upon the return-day of said order. On the 18th of November, Mr. Justice Barrett granted an order to show cause why the said Dempsey and Carroll should not be punished and fined, as for contempt, for their neglect and disobedience of said order and of said subpoena duces tecum. Upon the return of said order, a motion was entertained by the justice then holding the special term, to vacate and set aside the order, upon the affidavits then presented, which motion was denied, and the motion to punish the defendants Dempsey and Carroll, as prayed for, granted, with costs, unless they attended, on the' day and place in said order fixed, with the books called for in said original order, and submitted to examination then, and from time to time thereafter, as might be necessary. The defendants appeared, pursuant to this-order, and were examined, but they refused to produce the books, as provided for in said order. On the 30th of January, 1888, the order made on the 26th of November, 1887, adjudging the defendants in contempt, unless they appeared and were examined and produced the books, was amended by adding thereto the statement that the intent of the order was simply to sustain the original order for the examination of the defendants, and that the court did not pass upon the question whether the defendants had in their possession the books which they were required to produce. On the 23d of December, 1887, Mr. Justice Lawrence granted an order upon papers therein recited, that the defendants show cause why they should not be punished for contempt in neglecting and refusing to produce the books called for by said original order, to-wit, the stock-ledger and minute-book of the defendant company. Upon the hearing of this order to show cause, an order was entered, referring it to a referee, to take proof as to the facts constituting the alleged contempt, and ¡to report the same, with his opinion thereon. When the parties came before the referee, the moving parties introduced the original affidavit, and order . for the examination of the defendants and the production of the books. These papers the learned referee received as pleadings defining the issues involved in this proceeding, and not as evidence as to the commission of the contempt, and held that the contempt must be established by common-law proof. The plaintiff thereupon examined a witness for the purpose of showing that the defendants had failed to comply with the order by producing the books called for. The defendants attempted to prove, upon the cross-examination of the witness, what the defendants had testified to upon their examination, which • evidence was excluded by the referee, upon the ground that the examination had been reduced to writing and signed. This examination of the defendants was marked, for identification, but, as far as the minutes go, there is nothing 'to show that it was ever offered in evidence before the referee. jSTo evidence whatever was offered upon the part of the defendants. The referee tbere■upon reported that the parties had been guilty of a contempt. The motion to punish for contempt was renewed by the plaintiff, and a motion made by the ■defendants to set aside the referee’s report, upon the ground of misconduct ■on the part of the referee. The motion to set aside the report was denied, and the motion to punish for contempt was granted, and from the orders thereupon entered these appeals are taken.

It was claimed, in support of the motion to set aside the report, that the referee had refused to consider the affidavits or depositions mentioned in the ■order of reference, other than such affidavits as were introduced in evidence by the plaintiff’s attorney before him, and that, as these affidavits raised an issue as to the possession of the books, it was necessary that the • plaintiff, ■before he was entitled to these proceedings, should prove before the referee, by common-law proof, that the defendants had possession of the books i n question. As far as the disposition of this motion was concerned, it was entirely immaterial whether the referee considered these affidavits and depositions, or not. The case was tried by the referee as though the question to be determined was whether the defendants were to be deemed in possession of these books, on 'the proof presented before him; and he found that, under the circumstances, "the burden of proof of showing the fact that these books were not in their possession was upon the defendants; and in this, we think, he was clearly right, for two reasons: First, because the order of Mr. Justice Barrett re•quired the production of the books, and if the defendants did not obey this •order, they were bound to show the reason why, and this, under the ruling of the referee, made at the suggestion of the defendant’s counsel, could only be ■done by the production of common-law proof that the books called for did,not exist, or that they could not be produced by the defendants because «they knew nothing of their whereabouts, and could not ascertain the same, / The •denials contained in the examination of the defendants could not be received ■as such proof, even if offered for that purpose, which they were not, because they were not common-law proof. The reference was ordered because these •denials did not satisfy the learned justice before whom the motion was made, •and he desired that an oral examination should be had upon this point before ■an officer, who could see the witnesses, and judge from their appearance, as well as from the testimony given, of the verity of their utterances. The hooks having been ordered to be produced, the burden was upon the defendants to excuse their failure to obey. The second reason why the burden of proof was upon the defendants to excuse their neglect to produce the books, is because, under the law under which the Union Square Printing Company was organized, the trustees were bound to keep a book of the character called for by the subpoena, and the failure to keep such a book was prescribed by the statute to be a misdemeanor. The presumption, therefore, was that the trustees of this corporation had performed their duty, had not been guilty of a misdemeanor, and had kept the book in question, and, such being the fact, that the book was in existence, and had been kept as required by the statute. Each trustee was liable to be compelled to produce that book in court, under the provisions of the Code, for the purpose of being used in connection with his examination, to refresh his memory upon points upon which he might be examined by reference thereto. In the case of People v. Pease, 27 N. Y. 74, this rule in regard to presumptions is distinctly recognized. In that case, the question arose as to the right of a person who was alien born to vote. It was claimed that, in the absence of any proof of naturalization, such vote must be disallowed. The court, upon the other hand, held that, as the voter could not be presumed to have committed a crime, which he would have done had he voted without being naturalized, in the absence of all proof upon the-subject, it must be presumed that he had become a citizen before offering his-vote; and the principle laid down by Greenleaf, in his work on “Evidence,” that, “ where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for, in these eases, the presumption, of law, which is always in favor of innocence and quiet possession, is in favor of the party charged, ”— was referred to with approval. And the court proceed to say that the request to charge, in the case cited, involved something more than a criminal, neglect of duty, or fraud. If the party voted without naturalization, the act constituted it a misdemeanor. The presumption against positive crime cannot be less strong than the presumption against fraud or criminal neglect of duty. The negative, therefore, which was involved in the plaintiff’s request, could not be presumed, but required to be proved by the party alleging it. Applying-the principles above enunciated to the case at bar, the presumption is that these trustees had done their duty, and had kept the book required by law, and, it being in existence, it was supposed to be in the custody of the corporation, and its officers could be compelled to produce it. If no such book was in existence, it was the duty of the defendant to have shown the fact, by competent common-law proof, according to the principles which were claimed upon the reference by their counsel, and which position was conceded by the-referee. We think, as far as this motion to punish for contempt is concerned, the counsel for the defendants has entirely mistaken the presumptions arising from the position of the defendants, and that if he desired to excuse the failure-to produce these books, either because of their non-existence, or that they were not under the control of the defendants, it was necessary for him to-establish those facts before the referee, by evidence upon his part. He having failed to do so, the defendants stood before the court without any justification for the violation of the orders which have been made against them.

The allowance of the $100 counsel fee to the plaintiff’s attorney, by way of indemnity, cannot be sustained. While the court has the power to impose, as a fine, an indemnity for legal expenses incurred, in addition to those properly taxable, the amount of such indemnity must be ascertained by evidence, to which is to be applied the same rules pf law as upon the trial of an action brought for the injury. The amount of such indemnity is in no sense in the discretion of the court, but the judgment of the court must be founded upon legal proof. Sudlow v. Knox, 7 Abb. Pr. (N. S.) 420. There was no such proof offered as to this $100 allowed for counsel fee, and consequently the order appealed from was erroneous, and must be reversed, and the proceedings remitted to the special term for further procedure, but without costs.

Bartlett and Brady, JJ., concur.  