
    FARRAND v. WITTNER.
    (Supreme Court, Appellate Term, First Department.
    February 14, 1913.)
    Pleading (§ 352)—Failure to Comply with Order—-Striking Answer.
    Defendant’s answer may not be stricken because of Ms not discovering and producing certain books and papers, as he was ordered; his affidavit that he had produced all the books and papers in Ms possession relating to the transaction, and that the balance had been lost when he moved, being uncontradicted.
    [Ed. Note.—For other cases, see Pleading, Cent Dig. §§ 1078-1091, 1125; Dec. Dig. § 352.*]
    Appeal from City Court of New York, Special Term.
    Action by Nelson A. Farrand against Hyman Wittner. From an order striking out the answer, because he refused to obey an order requiring him to discover and produce certain books and papers, defendant appeals. Reversed, and motion denied.
    Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.
    Aaron Honig, of New York City (Max D. Steuer, Julian Arthur Leve, and Emanuel Klein, all of New York City, of counsel), for appellant.
    Cromwell G. Macy, of New York City, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BIJUR, J.

Defendant’s affidavit, to the effect that he had produced all the books and papers relating to the transactions which were in his possession, and explaining that the balance had been lost when he moved from his place of business, was uncontradicted. There would, therefore, appear to be no ground for predicating any punishment of the defendant on his failure to produce that which was either nonexistent or, at least, not. available to him. See People v. McClellan, 191 N. Y. 341, 84 N. E. 68; Chartered Bank of India v. Fire Ins. Co., 145 App. Div. 307, 129 N. Y. Supp. 1067; Ammidown v. Century Rubber Co., 14 N. Y. Supp. 769.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.  