
    Clifford N. Searle, Appellant, v. Halstead and Company, Respondent.
    First Department,
    June 24, 1910.
    Deposition — examination before trial — distinction between examination of party and witness — evidence — refreshing recollection.
    A-n order for the examination of a defendant, .corporation as 'an adverse party, through the personal examination -of specified officers, is an order for the - examination of the corporation itself, not one for the examination of the officers " as.such. The examination is entirely distinct from an examination of a former officer of such corporation as a witness pursuant to sections 871, 872 and ST'S of the Code of Civil Procedure.
    Where a corporation on its examination has produced hooks and papers in response to a subpoena duces tecum, and such books are before' the court, it cannot refuse to produce them on the examination of a former officer as a witness, merely because another subpdsna.dMcss tecum has not been -issued under the latter order for examination.
    It is a valid objection to a question that its sole purpose is to have the witness, read into the record entries from books rather than to disclose his recollection as refreshed by the examination of the hooks. ...
    
      Appeal by the plaintiff, Clifford H. Searle, 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 12th day of May, 1910, granting the defendant’s motion for the direction-of the court on several questions certified by a referee herein,-and denying the plaintiff’s motion to compel an officer of the defendant to answer certain questions and to compel the defendant to perform certain acts and suffer certain penalties.
    
      Philip B. Adams, for the appellant.
    , William H. Wadhams, for the respondent.
   Dowling, J.:

In this action an order was obtained for the examination of the' defendant, as an adverse party, on March 12, 1909. Thereunder, four of its officers were required to appear before a referee therein named for examination, pursuant to.section 873'of the Code of Civil Procedure. Subsequently, on February 21, 1910, another order was obtained for the examination of George L. Lyon,.late secretary of the defendant corporation, pursuant to sections 871, 872 and 873 of the Code of Civil Procedure, before the same referee, who had theretofore been appointed under the prior order.

The questions which arise upon the present appeal were raised at Special Term by application for certain direction's based upon the certificate of the referee. At the outset it may be said that the defendant is correct in its contention that the examinations provided for by the two separate orders herein are different and distinct proceedings. The orders were made by different justices upon different dates, and are based upon different provisions of the Code of Civil Procedure. The first order is one for the examination of the defendant corporation as an adverse party, the examination being effected through the personal examination of certain specified officials thereof. It was an order for the examination of -the. corporation and not for the examination of the officers as such. (Jacobs v. Mexican Sugar Refining Co., Ltd., No. 2, 112 App. Div. 657.) On the other hand, the order for the examination of Lyon is one for the examination of a witness who is not a party to the proceedings, and is entirely distinct arid different from the first order. (Chittenden v. San Domingo Improvement Co.,. 132 App. Div. 169; Chartered Bank of India v. North River Ins. Co., 136 id. 646; Diefendorf v. Penn, 125 id. 651.) But even though the two proceedings are entirely separate and distinct, the defendant was not justified in refusing to produce before the referee for use- upon;the examination Of the witness Lyon, held pursuant to the terms of the second order, books and papers which were then actually in court, having theretofore been produced at an examination held pursuant to the terms of the first order, in response to a subpoena duces tecum which had been duly served. The referee directed that these books and papers should. be produced for such examination, and was clearly within his rights and powers in so ordering.

The sole purpose of the serving of the subpoena duces tecum is to assure by orderly method the production of books and papers which are required for use in a hearing or trial. There is no necessity for such subpoena when the documents required are actually present in court. ; In this case the books and papers sought to be submitted to the witness Lyon for the purpose of refreshing liis- recollection, if possible, concededly were physically present at the time before the referee. To say that they were only actually present for the purpose ■ of examination under the second order, and that, before they ■ could be regarded as physically present for the purpose of examination under the first order, a further subpoena must be served, is a mere quibble, unworthy of serious consideration.

The.third question presented is as to the relevancy and materiality of certain questions propounded to the witness Halstead, As to these, questions it is sufficient to say that the objections urged against -them are valid, as their .sole pu rpose is not to disclose the recollection of the witness as refreshed, by his examination of the books, but to have him read into the recqrd the entries in the books themselves. This, of course, cannot' be done. ■ " ■

As to the application to tax the disbursements of the proceedings, to a date specified, against.the defendant, it suffices to say.that, in the present state of the examination, no reason has been diselosedfor such action.

The order appealed from will, therefore, be modified by answering. the first and third, questions certified by the referee in the nega-. tive, and the second question, so cértitied, in the affirmative, and as so modified' the order is affirmed, with ten dollars costs and disbursements to the appellant.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred. .

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.  