
    In the Matter of the Application of Martica G. Waterman Respondent, for the Issuance of a Subpœna Duces Tecum to Howard H. Henry, Appellant.
    First Department,
    December 30, 1905.
    Depositions for use without the state — proper scope of subpoena — witness not required to file sworn copies of books.
    When an action is pending in another State against a bank to recover the value of bonds converted by its cashier whom the defendant is alleged to have employed with knowledge of his unfitness, the plaintiff may have a subpoena duces tecum, under section 915 of the Code of Civil Procedure, requiring a broker in this State with whom the cashier is alleged to have speculated with the knowledge of the defendant to testify and to produce a' record of the cashier’s transactions before a notary public.
    But the subpoena should only require "the production of books showing transactions prior to such conversion by the cashier.
    Nor should the subpoena require the witness to file sworn extracts from the-books. The books themselves should be produced by which the witness may refresh his recollection and if copies are desired the books may be read into the minutes.
    Appeal by Howard H. Henry 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 20th day of November, 1905, denying his motion to vacate a subpoena duces tecum.
    
    
      Anson M. Beard, for the appellant.
    
      Aden Wardwell, for the respondent.
   Ingraham, J.:

The petitioner, Martica Gr. Waterman, presented to the Supreme Court a petition stating the facts required by section 915 of the Code of Civil Procedure; thereupon a justice of the Supreme Court issued a subpoena requiring the appellant to appear before a notary public and give testimony in an action pending in the State of Connecticut. I think the petition complied with section 915 of the Code and rule 17 of the General Rules of Practice, and that the motion to vacate the subpoena was properly denied. I think, however, that the subpoena should be modified. Rule 17 of the General Buies of Practice provides that a witness subpoenaed to attend and give his deposition inay apply to the court to vacate or modify such subpoena. . By the petition it appears that the action in which the evidence is sought to be taken is against a national bank and its receiver. The nature of the action is to recover the value of two bonds deposited by the plaintiff with the said bank in or about the month of August, 1898, and which.were wrongfully abstracted by one Sherwood, cashier of the said bank, and converted by him to ‘ his own use. between the 11th day of August, 1898, and the 15th day of January, 1900, and pledged by the said Sherwood for his own debt, the said bonds being sold by the pledgee subsequently to the 12th day of May, 1903. The plaintiff claimsthat the bank and the receiver thereof' are liable for the value of the bonds owing to The negligence and lack of Ordinary prudence and care of the said' bank and its directors, in failing to remove the said Sherwood from his office as cashier when they knew or Ought to have known him to be unfit for such position and trust.

The appellant is' a member of a firm of brokers in the city of Mew York, through who pi Sherwood was engaged in speculating-in stocks. The evidence of the appellant is sought to prove the transactions of Sherwood through -this firm of stockbrokers and thé knowledge of the officers of the bank of such, speculations. It is apparent that tire testimony of ope of the firm of stockbrokers will be material upon the trial of the action to. prove the fact that Sherwood was speculating,' and further to. prove that the- officers of the bank had knowledge of such speculations.' "The petitioner alleges that Sherwood converted these bonds.pri.or to the 15th day of January, 1900, and I think, the subpoena should only require the pro- ' duction of books of account showing the transactions on the part of • Sherwood ..prior to "that date. Mor do I think that the appellant ' should be compelled to. produce letters from Sherwood, or any one acting in joint account with him, relating to transactions subsequent to the 15th day of January'-,'1900.

The subpoena also requires "the witness to deposit with'the’ said ■ notary public sworn copies of extracts from the books of his firm showing the accounts herein referred' to.' I think this provision should be stricken out.' Theré is no obligation upon, a'witness to have copies, of his. books -made for the" benefit of parties jó an action in Connecticut. It is proper that the witness should be directed to produce his books before the notary public in order to refresh his recollection in testifying to the transactions between the firm of which he was a member with Sherwood. And if the party upon whose application the witness was subpoenaed desires copies of the books, they can be read into the minutes before the notary.

The subpoena should, therefore, be modified by striking out the provision requiring the witness to deposit “sworn copies of extracts from said books showing the accounts herein referred to,” and the witness should only be required to produce copies of books of account between the 1st of August, 1898, and the 15th of January, 1900," and the production of letters from Sherwood or -any one acting in joint account with him referring to transactions of Sherwood with the brokers prior to the 15th of January, 1900.

The order appealed from should, therefore, be reversed and an order granted modifying the subpoena as before stated, without costs of this appeal.

O’Brien, P. J., Patterson, Laughlin and Clarke, JJ., concurred.

Order reversed and order granted as stated in opinion, without costs.  