
    CHARLES F. HOLTZ, Plaintiff and Respondent, v. HENRY G. SCHMIDT and EMIL CUNTZ, Defendants and Appellants.
    A court has power to compel, by a subposna duces tecum, the production by a party of his books or papers; and upon their production the court will be in a position to decide upon- their introduction in evidence, and as to the competency of such evidence as they provide.
    A court or referee should not in the first instance order the production of the books and papers as in this case, and on the failure of such production on a motion to punish the witness for ■ his disobedience, hold that the witness was not subject to punishment on the ground that such production would not entitle the plaintiff to inspect the books at the trial. The inspection alone could determine that question.
    A party cannot be compelled by order to produce his books to obtain evidence of a secondary character, where it appears that evidence of a better character, to the same facts, could have been obtained from other sources, and from the testimony of living witnesses.
    The application must show that the discovery is needed, and necessary ; and certainly that cannot be the situation when it appears there are other and better means of obtaining the same evidence.
    Before Monell and Spencer, JJ.
    
      Decided December 31, 1871.
    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 for an inspection, &c., of the books, and an order for such inspection, &c., was there made, from which this appeal was taken by the defendants.
    The order contained the following:
    “ It is ordered and adjudged, that said plaintiff and his said attorneys, or either of them, during twenty days from and after the entry and service of this order, have inspection at the store of the defendants, in New York city, during the usual business hours, of their delivery books, cash books, sales books and ledgers, containing entries relating to sales made by the.defendants in the years 1867, 1868 and 1869, of wines and liquors, such as mentioned in the complaint, and that said plaintiff have permission to take copies from said books containing entries of sales made by defendants to the plaintiff, and John Linneman, Park & Tilford, and Acker, Merrill & Co., and showing the prices, quantities and qualities of the wines and liquors sold, and the discounts and allowances on such sales, and that the said defendants verify the same when made : and it is further ordered, that in case of the non-compliance of the defendants with the requirements of this order within the time aforesaid, the answer of the defendants be stricken out.”
    
      Mr. Charles Tracy, for appellants.
    
      Mr. Charles Wehle, for respondent.
   By the Court.—Monell, J.

The referee was probably premature in deciding that the production of the 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 that case was that the. court had the power. Upon their production, the referee would have been in a position to decide upon their competency, and Ms decision could have been reviewed only on appeal.

The form or order in which the referee met the question, however, is not material, and he may have been entirely right in the decision he made as to the incompetency of the evidence ; but I think the ground upon which he placed his decision was erroneous. The books of a tradesman are always competent evidence against himself, but that does not make it proper to always admit them in evidence. They may be excluded where it'does not appear that they bear any relation to the subject of the controversy. But if they do, arid contain admissions or other evidence against the party, they are certainly competent. Therefore, the referee was, I think, in error in supposing that the only use of the defendants’ books, in this action, would be to assist the witness in giving his testimony.

But I think they should have been produced in obedience to the subpoena, and, when produced, it would have been time enough to have decided upon their competency. Had this view of Ms powers been taken by the referee, the motion which resulted in the order appealed from, would have been unnecessary. And we, think the party should .again go before the referee with this enunciation of the views of the court.

But there is a fatal objection to the order itself.

The object sought for was, to obtain evidence of sales'made by the defendants to the plaintiff and others named in the order. There was no allegation that the evidence could not be obtained from other sources. In- ’ deed it is quite clear that it could have been. The • plaintiff knew of and could testify as to the sales to himself ; and the other persons named were competent as witnesses to testify, as to the sales to themselves. It is indispensable that the petitioner, upon these applications, should show that this discovery is needed ; and it cannot be, if there are other means of obtaining it (Pegram v. Carson, 10 Abb. Pr. 340, 346).

The order should be reversed, with costs.  