
    Patrick O. H. McCartan, Plaintiff and Appellant, v. Elbridge Van Syckel, Defendant and Respondent.
    1. Where an action for an accounting between partners is referred to a Referee, with power to require defendant to' produce an account, and the defendant, when required by the Referee to produce such account, offers proof that the partnership books have been taken from his possession by the plaintiff, and that he is unable to render such an account, it is the duty of the Referee to receive such proof, and an absolute direction to render the account, without inquiring into such fact, is improper.
    2. Under such circumstances an attachment ought not to be granted to punish the defendant for not complying with the order.
    3. A party should not be adjudged guilty of a contempt by reason of not complying with an order of the Court, where he is incapacitated to comply by the act of the adverse party, though that act be lawful. (Per Boswokth, Ch. J.)
    4. It seems, that the Sheriff is not bound to permit parties, whose books are in his custody under an attachment, to examine them.
    (Before Bosworth, Ch. ¡L, and Robertson and Barbour, J. J.)
    Jffcard, December 27, 1862;
    decided, February 28, 1863.
    This was an appeal from an order denying plaintiff’s motion for an attachment against the defendant as for a contempt.
    The action was brought by one partner against another, for an account and settlement of the partnership affairs. An order was made by the Court, at Special Term, referring the cause for trial and determination, and also direct-, ing “ that the defendant produce before the Referee all “ books of account, vouchers, and other documents and “ writings, relating to the premises, and render and furnish “ to the Referee, under oath, a true, just and full account “ of the business and transactions, in the pleadings men- “ tioned, whenever he should be thereto required by the “ Referee.”
    When the cause came on for trial before the Referee, and before any testimony was taken, the plaintiff’s counsel moved that the defendant file a sworn statement of the business and transactions of the firm, and the Referee directed the defendant to furnish such statement at a future meeting. The defendant failed to furnish the statement as required, and thereupon the plaintiff applied to the Special Term, upon the certificate of the Beferee, for an attachment against the defendant for his contempt in thus disobeying the order of the Oourt.
    Upon the hearing of the last motion, at Special Term, before Mr. Justice Monell, in November, 1862, the counsel for the defendant read an affidavit, made by the latter, stating that since the commencement of this action, but before the order of reference was made, the plaintiff, under and by virtue of an attachment against the defendant, took and carried away all the books and papers of the firm, containing the entries of the account sought; and averring that it was utterly impossible for him to comply with the provisions of such order. The defendant’s affidavit further states that he offered to prove before the Beferee, at the time he was directed by the latter to render an account, that it Avas impossible for him to do so, for the reason that the books and papers had been so taken from Ms possession by the plaintiff. But it also appeared, from a certificate, or statement of the Beferee, read by the defendant on that motion, that some shipments to foreign countries had been made on partnership account, from which no returns had been received; that those shipments did not appear upon the books, and that these facts were brought to the notice of the Beferee on the day when the defendant was to render the account, if not at the time the Beferee made his direction that such account should be rendered.
    The motion was denied, and the plaintiff appealed.
    
      G. Dean, for the plaintiff, appellant.
    
      W. W. Niles, for the defendant, respondent.
   Barbour, J.

The question whether an account should be rendered before proofs were taken as to the conditions of the alleged partnership, was entirely within the discretion of the Beferee. (Palmer v. Palmer, 13 How. Pr., 363.)

There can be no doubt that the order of the Court directing the defendant to render an account of the partnership business, whenever he should be required to do so by the Referee, fully empowered the Referee to require such account to be rendered. (Fraser v. Phelps, 4 Sandf., 682.) But the authority given to the Referee to require an account to be rendered, necessarily included the power to omit such requisition, if the facts before him showed that the account was unnecessary, or that it was impossible for the defendant to make it. It was his duty, therefore, to receive the proofs offered to show that the books and papers were in the possession of the plaintiff himself, and beyond the control of the defendant; for, had that fact been established, it might safely have been assumed, not only that no further account of the matters contained in the books was necessary, but that it was not in the power of the defendant to make it. That matter the Referee ought to have inquired into before requiring the defendant to render an account of all the partnership business; and the absolute direction to render such account without that inquiry was, therefore, improper.

It is true that, so far as concerned the foreign shipments by the defendant, for the benefit of the firm, not contained in the books, an account, I think, could have been rendered by him, and might, properly, have been directed by the Referee, notwithstanding the returns had not yet been received; and that account the plaintiff was entitled to have. But the direction made by the Referee went far beyond this, and required the defendant to perform an act which we must assume was impossible, and which was unnecessary for the purposes of the reference.

I think, therefore, that the Judge below decided correctly in denying the motion for an attachment; and that such order should be affirmed, with costs.

Bosworth, Ch. J.

Though the order of reference remains in force, the defendant should not be adjudged guilty of a contempt, by reason of not complying with any of its requirements, where he is incapacitated to comply by the act of the plaintiff, though that act be lawful.

The Court should not grant an attachment where, on the conceded facts, it would not convict. The plaintiff can move, at his peril, by an order to show cause, without the issuing of an attachment. (Watson v. Fitzsimmons, 5 Duer, 629; affirmed in the Court of Appeals.

I do not assent to the proposition that the Sheriff is obliged to permit either of the parties to examine the books, or to incur the inconvenience and hazards of granting the free exercise of that privilege, or of allowing them to exercise it, and providing a guard to watch the parties, in a case where such precaution would be necessary.

I doubt whether an order granting or refusing an attachment, involves the merits. It is merely process, to bring the party before the Court to answer, to an allegation of misconduct; the granting of it is not essential to the right of the complaining party to be heard, or to convict the opposite party of the alleged misconduct, or to enforce any decision that may be made.

For these reasons, as well as those assigned by Mr. Justice Monell, on making the order, and by Mr. Justice Barbour, on the appeal, I think the order should be affirmed.  