
    MORGAN against MORGAN.
    
      New York, Common Pleas;
    
    
      Special Term,
    
      November, 1874.
    Evidence.—Witness.—Corporations.—Discovery. —Contempt.
    Even where a corporation is a party to the action, the production of its books can not be enforced by subpoena duces tecum, served on its officers, but only by discovery under 2 Rev. Stat., 199—which provides for discovery by a party, under an order of the supreme court, in cases in which discovery may be proper—or under section 388 of the Code of Procedure—which authorizes the court before which an action is pending, or any judge or justice thereof, upon notice, to order either party to give to the other an inspection, or copy, or permission to take a copy, of any books, &c., in his possession, or under his control, containing evidence relating to the merits of the action or to the defense therein—both of which make the granting of the discovery, to be in the discretion of the court or judge applied to.
    
    Where a corporation is not a party to the action, no power of enforcing an examination or production of its books and papers is afforded on a trial between other parties; nor can its agents or officers, in their individual capacities be compelled to discover or produce the books of a corporation, over which they have not the absolute control and right of disposition at their own will and discretion.
    It is defense to a common-law action against a witness, and to a proceeding to punish him for contempt, for neglecting to attend in obedience to the process of subpoena served upon him, that he knows nothing material to the issue; or if it was a subpoena duces tecum, that he has not any document, such as he is called upon to produce, material and necessary as evidence tending to prove the case of the party requiring his attendance.
    
      William P. Morgan brought this action for an absolute divorce from his wife Caroline L. Morgan, on the ground of her alleged adultery.
    The action was referred to a referee.
    One Sarah Tyndal testified before the referee, that defendant’s mother, Mrs. Lyons, as her agent, brought a new-born infant to the foundling asylum of the sisters of charity in the city of New York, on or about June 15, 1872; that witness was at the asylum at the time; and that Mrs. Lyons left the infant with the sisters of charity. The witness further testified that defendant had interviews with her, in which defendant admitted sending the infant to the asylum by her mother, and made statements explanatory of the manner in which the child came to her, and the reasons which induced her to send it to the asylum.
    In furtherance of the investigation into the paternity of the child, which is alleged to be the fruit of an illicit intercourse between the defendant and a paramour, the referee issued subpoenas duces tecum requiring sisters M. Irene and Aloyse, chief officers of the asylum corporation, to attend before the referee, and produce the book or books of the asylum containing entries of the disposition of infants, the reports of the person or persons appointed to inspect such infants, and the letters, if there be any, written in respect to an infant left at said asylum by defendant’s mother as above stated. Neither the asylum nor its officers are parties to the action.
    The subpoenas were duly served.
    The proposed witnesses, acting under the advice of counsel, not having appeared, and declining to appear unless ordered by the court so to do, a motion for an order compelling them to produce the books or sworn copies of entries therein, or, in default thereof, for their attachment for contempt, was made before Loew, J. This motion was based on an affidavit by the plaintiff that the books of the foundling asylum contain evidence material to the issues of this cause, and that, after consulting his counsel, he can not safely proceed with the trial without it; and also upon an affidavit by Sarah Tyndal that it is customary at such' institutions, “when a well-dressed person (such as was defendant’s mother) was seen by one of the sisters to bring an infant, and leave it in the cradle of said institution, for the person to be interrogated by the sister as to the circumstance, of the parentage of the child;” . . . “ that the deponent believes that was done in the present case;” . . . “that it was the rule of the institution that the names of infants, and circumstances of interest to the infant and its parents, leading to identification or otherwise, should be entered in a certain book kept for such purpose, and when an infant had no name given to it, to the knowledge of the sisters, then the sisters gave the infant a name,” &c., and that she heard some conversation between Mrs. Lyons and one of the officers, on the occasion of her leaving the child.
    Loew, J., after hearing counsel, decided that the officers of a corporation could be compelled to produce the corporate books and papers for the purpose for which these were now desired, and that this court had frequently compelled them to do so. The justice further held that the affidavits on which the motion was made should specify the particular books required, and gave the counsel for the plaintiff leave to renew his motion on new and more specific affidavits.
    The present hearing is on the renewal of the motion.
    
      George H. Hart, for plaintiff,
    in support of the motion.—The provisions of the Revised Statutes (2 _R. 8., 199), and of the Code of Procedure (§ 388), do not apply, since the proposed witnesses are not parties to the action, so that the ancient practice obtains and governs this case (Gould v. McCarty, 11 N. Y, 575; Follett v. Weed, 1 Code R., 65; Davis v. Dunham, 13 How. Pr., 425, 437). The Revised Statutes, moreover, do -not apply to the production of books on the trial, but only confer a right of inspection (Lefferts v. Brampton, 24 How. Pr., 257). To be excused, the witness must (1) belong to a privileged class, or (2) be physically incapable to comply with the terms of the subpoena; either of which exceptions are the proposed witnesses within. The doctrine of La Farge v. La Farge Ins. Co. (14 How. Pr., 26) applies only when the officers of the corporation are parties to-the suit, when a discovery of the corporate books is demanded. (2 B. 8. 199, § 21). The witnesses subpoenaed were bound to attend (2 B. 8., 400); and to produce the papers called for (Bonesteel v. Lynde, 8 How. Pr., 226 ; Aff’d Id., 352 ; Garighe v. Losche, 6 Abb. Pr., 284, note; People v. Dyckman, 24 How. Pr., 222 ; Brett v. Bucknam, 32 Barb., 655; Amey v. Long, 9 East, 473). The subpoena was proper (Aikin v. Martin, 11 Paige, 499). A witness disobeying the duces tecum clause, though otherwise obeying the subpoena, is liable in damages to the party aggrieved (Amey v. Long, 1 Camp. N. P., 14; Lane v. Cole (12 Barb., 680); and it is not necessary to show damage (Id.; 2 Waite's Pr., 727; and cases cited). The evidence sought for is materia] (see plaintiff’s affidavit), though if it were not, the objection could not be taken on this application (Central Nat’l. Bank v. White, 37 N. Y. Super. Ct. (5 Jones & 8.), 297). The materiality has not been denied by affidavit, and so must be taken to be admitted (Lefferts v. Brampton, 24 How. Pr., 257, 261). The representations made by Mrs. Lyons, to the sisters on leaving the child, are evidence against the defendant (Kasson v. Mills, 8 How. Pr., 377; Hunter v. Hudson River Iron Co., 20 Barb., 493); and are parts of the res gestee (Endlong v. Van Nostrand, 24 Barb., 25; Thallhimer v. Brinckerhoff, 4 Wend., 394). It is no answer to say that they are confidential, if they are not privileged (People v. Sheriff, 7 Abb. Pr., 96). The description of the entries required, is sufficient (Low v. Graydon, 14 Abb. Pr., 443 ; Thompson v. Erie R. Co., 9 Abb. Pr., N. S. 216, 225).
    
      John E. Bemlin, for the Foundling Asylum, and the sisters, M. Irene and Aloyse.
    The entries, if any, would be of Mrs. Lyons’ representations, and as to these, she should herself be called. The entries are mere hearsay, and though proper to refresh her memory by, would not be admissible even in her impeachment. The affidavits do not allege that the defendant is the mother of the child. The nature and materiality of the entries should be specifically set forth in the affidavits (Walker v. Granite Bank, 44 Barb., 39 ; Cassard v. Hinman, 6 Duer., 695). But even if the affidavits were positive as to the entries having been made, and specific as to their nature and materiality, the motion should not be granted. The sisters, M. Irene and Aloyse, are officers of a corporation, and only have the care and custody of the books as such (Bank of Utica v. Hillard, 5 Cow., 153 ; La Farge v. La Farge Ins. Co., 14 How. Pr., 36). Neither can say “these books are my books,” and this is the best of their obligation to produce them (Ang. & Ames on Corp., p. 608, ch. 18).
    
      
       As to mode of enforcing an order of discovery, see amended supreme court rule 20, of 1875.
    
   Robinson, J.

[after stating the facts.]—This motion is to compel compliance with plaintiff’s demands, and. in my opinion it should be denied. 1. Even in case of an action in which a corporation is a party, the production of its books can not be enforced by subpoena duces tecum served on its officers; it can only be effected by way of discovery under the provisions oí the Revised Statutes (2 R. S. 199), or of § 388 of the Code (La Farge v. La Farge Ins. Co., 14 How. Pr., 26 ; Opdyke v. Marble, 44 Barb. 64); and the exercise of this power is left to the discretion of the courts.

As to the books of a corporation not a party to the action, no such power of enforcing an examination or production of them on a trial between other parties-is afforded ; nor can its agents or officers in their individual capacities be compelled to discover or produce the books of a corporation over which they have not the absolute control and right of disposition at their own will and discretion (Opdyke v. Marble, supra).

2nd. It is an answer as well to a common-law action against a witness as in proceeding to punish .him for contempt for neglecting to attend in obedience to the process of subpoena, served oupon him, that he knows nothing material to the issue, or if it was a subpoena duces tecum, that he has not any document such as he is called upon to produce, material and necessary as evidence, tending to prove the case of the party requiring his attendance (Courtney v. Baker, 3 Den., 27, and cases cited pp. 30, 31).

The case stated by the plaintiff affords at most the occasion for a mere fishing inquiry, that might possibly afford threads or clues for other inquiries, leading, perhaps, to elicit information as to some fact material to the case ; but what the defendant’s mother then communicated, or what was written down in the books of the corporation were in no respects res gestee as between the parties to this action, nor of any greater efficacy as evidence of any fact, than if it had then been declared and so entered on the books of the Foundling Asylum, that the cause for the consignment of the infant to its charge was the murder of one of its parents by the other.

As res gestae they had no relation to the incipiency of its gestation, or act of adultery charged, and therefore in no way tended to prove the commission of any adultery on that occasion.

The motion to compel the witnesses to produce the books of the corporation, or of any copies of entries-therein, is denied, with ten dollars costs.  