
    Press Publishing Company, Respondent, v. The Associated Press and Others, Defendants; The Morning Journal Association, Appellant. Charles M. Palmer, Appellant.
    
      Contempt of court — refusal of a witness to produce books upon an examination before a referee—it is not punishable by a fine — order adjudging him guilty of contempt made by the court.
    
    The refusal of a witness to obey the order of a referee to produce certain books upon an examination before him, is not punishable by the imposition of a fine. The action of the court, in such case, is governed by section 856 of the Code of Civil Procedure, which, by section 876 thereof, having reference to depositions taken before trial, is made applicable thereto, and which provides that, upon the refusal of a witness, present at a trial or hearing, to answer a pertinent question or produce a book, the judge may, “ by warrant, commit the offender to jail, there to remain until he submits to do the act, * * * or is discharged according to law.”
    It is not a valid objection to the order adjudging the witness to be guilty of contempt, that it was made by the court and not by a judge, where it appears that the order was not issued ex parte, but after a hearing, of which the witness had notice, and after which he was given an opportunity to comply with the direction of the court.
    Appeal by the defendant, The Morning Journal Association, and by Charles M. Palmer, a witness in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1899, adjudging Charles M. Palmer to be in contempt of court for refusing-and neglecting to produce certain books before the referee appointed in the above-entitled action.
    The reference was ordered for the purpose of examining, before trial, William R. Hearst, president of the defendant, The Star Company, and Charles M. Palmer, treasurer of the defendant, The Morning Journal Association.
    
      Roger A. Pryor, for the appellants.
    
      James W. Gerard, Jr., for the respondent.
   Per Curiam :

Whether or not Mr. Palmer was guilty of contempt was correctly determined below. The record discloses a clear case of a deliberate and sustained effort to impede the examination and to render it abortive. The suggestion that the witness could not produce the books was clearly an aftei'thought, and was availed of to escape the consequences of repeated refusals, under the advice of counsel, to obey the terms of the order or the directions of the referee. Had this plea been presented in good faith when the order was made, or upon the examination, or upon the motion to punish, it would have received consideration from the court. But its weakness is apparent, not alone because it was not availed of until every other excuse for impeding the examination had been exhausted, but from the further fact that after it was presented the counsel for the defendants, who were present advising the witness, objected to questions directed to showing that the witness, as treasurer, did have the books required on the examination, and, had he so desired, could have produced them. The facts and questions involved on the motion to punish, and again presented here, are so fully considered in the opinion of Mr. Justice Beekman that, were it not for a provision in the order which, in addition to committing the witness, imposes a fine, we should deem further discussion unnecessary.

The amount of the fine, $345.92, was the actual loss and injury to the plaintiff for fees of the referee and stenographer, and for printing ; and if there were authority for imposing it, we would sustain it as being both reasonable and just. As correctly urged by the appellants, however, the Code makes specific provision for the contumacy of a witness, differing from the general authority conferred by section 2457 and similar sections of the Code, to punish as for a contempt. The penalty is for disobeying a subpoena. For disobeying a subpoena and refusing to attend, the court not only has the right to punish, but may compel the contumacious witness to “ pay the damages sustained by the person aggrieved,” as prescribed by section 855. Where, however, the witness is present at the trial or hearing and there refuses “ to answer a legal and pertinent question, or to produce a book,” a judge may “by warrant commit the offender to jail, there to remain until he submits to do the act, * * * or is discharged according to law.” (Code Civ. Proc. § 856.) By express provision of section 876 of the Code, having reference to the taking of depositions before trial, mention is made of section 856 ; and we think the appellants rightly contend “ that without this reference to 856, the section (876) would not have applied, and that by the reference to 856, all other provisions of the Code are excluded. Exprésalo unius exdusio alterlus.” As no authority to impose a fine is given by section 856, its imposition was unauthorized.

The further contention, that the order appealed from is irregular * because made by the court and not by a judge, is untenable. The witness has no grievance because he was notified and an opportunity given to him to be heard, instead of being proceeded against ex pcurte. U pan the proceeding below, after a hearing, it was determined by the court that he was guilty of a contempt. The court did not commit the witness, however, but decided what he must do, giving him a reasonable time to comply, and then directing “ that the plaintiff may apply ex parte to a justice of this court upon proof .by affidavit of the violation of the provisions of this order * * * for a warrant.” Such a hearing and decision by the court may have been unnecessary to authorize a commitment, as held in Matter of McAdam (7 N. Y. Supp. 455); but, as already said, the procedure adopted was an advantage to the witness, and the objection now urged is highly technical.

The order should be modified by striking out the fine, and, as so modified, affirmed, without" costs.

Present — Patterson, O’Brien, Ingraham and McLaughlin, JJ.

Order modified as directed in opinion, and as modified affirmed, without costs.  