
    William H. Dole, App’lt, v. Charles D. Belden, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    1. Notice to produce documents—What sufficient to lay foundation FOR SECONDARY EVIDENCE OF CONTENTS.
    Upon the trial of this action oral notice was given to the plaintiff to produce all letters, papers and accounts in any way relating to the matters in controversy in the action which he had received from certain parties. The plaintiff refused to produce any of the documents called for. Held, that no claim having been made by the plaintiff that the documents were not in his possession, sufficient foundation was laid for the introduction of secondary evidence of their contents. Daniels, J., dissenting.
    2. Same—Notice may be general.
    
      Held, that the general notice was sufficient and that the fact that at the time of the notice the accounts were not the subject of inquiry was unimportant as notice might then be given for the production of all papers needed in the future.
    3. Same—Party refusing, upon notice, to produce documents in iiis POSSESSION CANNOT GIVE SECONDARY EVIDENCE OF CONTENTS.
    
      Held, that a party who refuses, upon notice, to produce papers in his possession will not be allowed to give secondary evidence of their contents.
    Appeal from judgment in favor of defendant entered tipon the report of a referee.
    
      Henry Daily, Jr., for app’lt; Thomas G. Shearman, for resp’t
   Van Brunt, P. J.

This case comes before the court upon a re-argument. Upon the previous argument the court came to the conclusion that the learned referee had committed an error in admitting certain parol testimony of written instruments because no sufficient notice to produce the written instruments had been given so as to entitle the defendants to introduce the parol testimony. Frank B. Merrill, one of the plaintiffs, being upon the stand, was being examined in regard to certain letters which he had received from the defendant, and upon certain letters being produced he was asked the question by the learned counsel for the defendant, upon cross-examination: “When I asked you on your cross-examination to produce letters from Mr. Belden you stated you had none with you;” and the witness answered: “I didn’t have them, sir.”

Q. How is it that you now produce them on your redirect examination? A. They came into the room since.

Q. Then please produce them?

The plaintiff’s counsel declines to produce the letters. The question is then asked: “Please produce all letters,, papers and accounts in any way relating to the matters in controversy in this action, which you have at any time received from Charles D. Belden or Eobert E. Noble.” The plaintiff’s counsel instructs the witness not to produce them and the witness makes no answer.

Q. Will you now produce those letters, some of which I see are now on the table before us? A. Those have been produced and put in.

Q. Will you produce those letters now lying on the table? A. That is for my lawyer to do what he has a mind to with those, and the counsel refused to produce any letters except those, parts of which had been marked in evidence.

The witness stated upon further examination that he had other letters in the room. The plaintiff having rested, the defendants called as a witness one Eobert E. Noble and he testified that he sent to the plaintiffs accounts between the defendants and them. He was then asked: “ State as nearly as you can recollect, the contents of such accounts? ”

This was objected to upon the ground that parol evidence could not be given of their contents, that the papers themselves were the best evidence, or copies of them, and that it had not yet been shown that copies were not retained. The objection was overruled and the witness allowed to answer as to the contents of these accounts.

In this no error was committed. Notice had been given to produce all letters, papers and accounts relating to this transaction, and it is apparent from the record that it was the intention of the plaintiff to refuse to produce any documents under any such notice. The record shows that the plaintiff’s counsel instructed the witness not to produce them.

No claim was made, but that the plaintiff had them, that he had letters and papers, and that he had accounts relating to this transaction. But it is apparent that he insisted upon his legal right to refuse to produce them under the notice given, because when certain letters, part of the papers called for, were proved to be in the room and upon the table at which the examination was being conducted; the refusal was persisted in upon the gronnd that a party could not be compelled to produce papers by any such method. This is the position which the plaintiff’s counsel assumed, and made no plea of not having the papers, or that the notice was insufficient.

Under these circumstances, a proper foundation for the introduction of parol proof in regard to these papers, accounts and letters was clearly laid. It is claimed that this notice called attention more particularly to the letters, and could not be held to apply to the accounts, because the accounts were not being inquired about. It does not seem to be at all important that at that particular time the accounts were not being inquired about, because the counsel had the right to give a general notice at that time for the production of papers he might in the future need, and desire to inquire through this witness or others in respect to; and this was the notice given as to which there is manifest upon the record a plain refusal to comply, putting the party to his secondary evidence. Under these circumstances the referee committed no error in the admission of the testimony in question,

The only other exception which it is necessary to consider is that arising upon the question put to Charles D. Belden, upon cross-examination, which was as follows:

“ Was there anything on this bill that you remember which would indicate to you that sugar was shipped or by whom it was received?” This question was objected to upon the ground that it was an attempt to prove the contents of a written instrument, and the objection was sustained.

These bills were the same accounts which had been called for on the notice, and which the plaintiff’s counsel had refused to produce. Upon his direct examination, it does not appear that Belden had been examined at all in regard to the contents of these accounts, and this was an attempt upon the part of the plaintiffs to introduce parol evidence of the contents of accounts which he had refused to produce upon proper notice.

That the referee was justified in excluding that evidence is supported by the case of Platt v. Platt (58 N. Y., 646), where it is distinctly held that a party will not be allowed to give secondary evidence of papers which are in his possession, and which he has refused to produce upon notice.

We think, therefore, that we were mistaken in the view which we previously took in regard to the validity of this exception, and that the judgment appealed from should be affirmed with costs.

Bartlett, J., concurs.

Daniels, J. (dissenting).

I still think that the oral notice was not sufficient to entitle the defendant to give the evidence which was taken of the accounts. It did not appear that they were present when the notice was given, or that they could be produced before the proof was received. It was the letters that was the subject of the examination of the witness; no reference was made in the questions and answers to accounts. And it did not appear at the time to be in the power of the witness to then produce them.

To render evidence of their contents admissible it should at least have appeared that they were present, or that the witness had an opportunity to obtain them, before the evidence was received. And neither of those facts was shown.  