
    The Holly Manufacturing Company, Resp’t, v. Clarence H. Venner, Impl’d, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 15, 1893.)
    
    1. Contempt—Subpoena duces tecum.
    The court may punish for contempt a person who fails to produce books pursuant to a subpoena duces tecum issued by a judge.
    2. Same—Fines.
    The imposition of fines is not limited to cases where actual loss or injury is not shown.
    3. Same—Excuse.
    The excuse for disobeying the subpoena duces tecum, though sufficient if true, was held, in this case, not to be worthy of belief.
    
      Appeal from an order adjudging defendant to be guilty of •contempt.
    
      Boot & Clarke (,Samuel B. Clarke and Bronson Winthrop, of counsel), for app'lt; Ellsworth, Potter & Starrs (David McClure, of •counsel), for resp’t.
   Van Brunt, P. J.

The appellant, being under examination in supplementary proceedings, was subpoenaed to produce certain individual and firm books which had been under his control. He, having failed to produce these books gave as an excuse that he was unable to find them, they having mysteriously disappeared. The court, disbelieving this excuse, found the appellant guilty- of ■contempt, and that his misconduct in not producing the books was calculated to and actually did defeat, impair, impede, and prejudice the rights and remedies of the plaintiff, and imposed as a fine for his misconduct, by way of punishment, the sum of $250 with ten dollars costs of motion, and committed the appellant to the ■county jail, to be there detained until he should produce the books .and pay the fine. From this order this appeal is taken. The grounds upon which this appeal is urged are: First, that the appellant’s excuse for not producing the books was, if true, manifestly sufficient; second, that there was no reason for doubting the excuse; third, that the fine of $250 was unauthorized; and, fourth, that the court had no power to punish for the failure to produce books pursuant to a subpoena duces tecum; and fifth, that the subpoena was not pioved to have been properly served.

In respect to the last point, it maybe said that no such objection •seems to have been taken upon the return of the subpoena, and, the court having adjudged that the subpoena was duly served, it is incumbent upon the appellant to show that there was some foundation for the objection, as it does not appear from the record but that the proper witness fees had been paid. It appears upon the face of the record that this subpoena was served in the courthouse, and there is no proof but what sufficient fees were paid in order to make it a compliance with the law, even if such a question can now be raised.

As to the power of the special term to punish for the failure to produce books pursuant to a subpoena, it is claimed that in all •cases where a party has been punished for contempt in such proceedings it has been because of disobedience to an order or oral direction of a judge or referee, and that - the case of a subpoena duces tecum is not provided for. The subpoena in this case was issued by the judge himself before whom the proceeding was then pending, and seems to have all the dignity, certainly, of an oral direction, and also of a written order. It was a direction of the judge before whom the proceeding was then pending to produce the books.

The next point is that the fine, of $250 was unauthorized, because such a fine can be imposed only where it is not shown that an actual loss or injury has been produced, whereas, in this case, it is adjudged that the appellant’s misconduct did defeat the rights and remedies of the judgment creditor, and that this is a finding that there was actual loss and injury; and, this being so, íbe only course open to the court was to proceed to assess the-damages, and lay an indemnity fine equivalent thereto. If the-point is well taken under any circumstances, then under no circumstances, unless actual loss or injury is proved, can a fine ever be imposed, notwithstanding the provisions of § 2284, where it says:

“ Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant’s costs and expenses, and two hundred and fifty dollars in addition thereto.”

The court is not authorized to convict of contempt, and to impose any punishment, unless it adjudges that the offense was; calculated tor or that it actually did, defeat, impede, impair or prejudice the rights or 'remedies of the party to a special proceeding. Section 2281. That is to be determined in every case before any punishment whatever can be inflicted, and it is idle to-suppose that it was intended that that should be an adjudication establishing actual loss and injury. The mere reading of § 2281 shows that the adjudication covers every case. But there may be-cases where actual loss has been produced, and which is established to an extent far beyond the amount of the fine authorized to be imposed by the latter part of § 2284; and it is in those cases that the court is authorized to impose a larger fine. But where there is no proof of actual loss and injury, although the court has found that the misconduct was calculated to or did defeat, impede, impair or prejudice the rights or remedies of the party, a fine of $250 may be imposed.

We come now to the question as to the sufficiency of the excuse offered by this appellant. It certainly is one of the most remarkable Qver offered to a court of justice, and that the learned judge below disbelieved the whole story is not surprising. We find that this appellant had been keeping books as a member of a firm, and also individually; that some time prior to the initiation of this proceeding, because he had no safe in which to keep his partnership books, he sent them to Boston, where they could be put into a vault. His individual books he allowed to remain here. They were removed from one office to another. He states that he did not see the individual books after the removal, but. his clerk states that he saw them in the office after the removal. They cannot be found. He then goes to Boston for the purpose of getting the books that had been put into a vault there, and they are gone, cannot be found, mysteriously disappeared. And the appellant desires us to believe that, because it was possible that certain other parties in other litigations had some interests hostile to the appellant, they had stolen his books. It appears also from the affidavit furnished by the brother in whose office this vault was situated that he left the door open frequently, and went out of the office, and left it alone, and the books may have been taken at such a time-as that; but there is not the slightest evidence that they were ever missed until they were wanted in this proceeding. This excuse may have had some color of credibility if the books in only one place had disappeared. But here. we find that the books wanted that were in the appellant’s office here are gone, stolen by these hostile interests,—and the books are stolen from the vault of the office in Boston by the same parties. This coincidence is altogether too remarkable. It cannot be that these people were so eager to get these books that they were safe neither in the appellant’s office in Hew York, nor in his brother’s vaults in Boston. The coincidence of the disappearance in these books carries with it unequivocal evidence of design. They would not disappear from both places, when they were wanted, without intelligent help. We think that the excuse offered would have been sufficient if true, but we do not believe that any intelligent man can help attributing the coincidenee mentioned to design. The order should be affirmed, with costs,  