
    Samuel Thompson Banes, Appellant, v. Roy A. Rainey, as Executor, etc., of William T. Rainey, Deceased, Respondent.
    First Department,
    February 5, 1909.
    Discovery — dismissal for failure to comply with, order — when genuineness of documents discovered cannot be summarily determined — appeal.
    To justify the summary dismissal of a pleading under section 808 of the Code of Civil Procedure because the party has failed to comply with an order for discovery, there must be an absolute and contumacious refusal to obey the order.
    Where a plaintiff has been ordered to discover and deposit for inspection papers upon which his cause of action is founded and has discovered and produced documents upon which he relies,- his complaint should not be dismissed on a finding of a referee appointed on the motion that the papers are forgeries as alleged by the defendant. The genuineness of the ■ papers is an issue which the plaintiff is entitled to have submitted to a jury and cannot be determined summarily by the referee.
    
      As an order dismissing a complaint for a failure to obey an order for discovery determines the action and “ prevents a judgment from which an appeal might be taken,?’ the order is appealable, even if no appeal lies from a judgment entered thereon. A judgment entered on such order necessarily falls with a reversal of the order.
    Appeal by tlie plaintiff, Samuel Thompson Banes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of December, 1907, pursuant to an order entered in said clerk’s office on the 24th day of December, 1907, confirming the report of a referee and dismissing the complaint; and also from the said order pursuant to which judgment was entered.
    
      James W. Osborne, for the appellant.
    
      Bartow S. Weeks, for the respondent.
   Scott, J.:

Appeal from order dismissing complaint and from judgment of dismissal

Plaintiff, a Philadelphia physician, sues for services rendered to W. T. Rainey, defendant’s testator, on divers days between March 28, 1900, and September 7, 1903, at the rate of $300 per diem, his claim in this behalf amounting to $31,200.

The basis of his claim is an alleged contract in writing said to have been executed by tlie deceased on September 10,1898, whereby said deceased agreed to pay plaintiff the sum of $300 for each day that plaintiff should be in actual attendance upon him. After the. death of W. T. Rainey and the appointment , of defendant as his executor, the plaintiff sent by mail to defendant certain papers, among which were what wore said to be copies of said contract,, and of two letters purporting to have been written by said W. T. Rainey to plaintiff dated respectively April 27, 1903, and June 19, 1903, together with an alleged copy of the account between said W. T. Rainey and plaintiff said to have been taken from plaintiff’s books. These papers were sent as the basis of a claim against the estate. A few days afterwards defendant’s attorney visited plaintiff at Philadelphia, and was shown what purported to be, and what plaintiff alleged were, the originals of the said contract and letters. The attorney examined them and arrived at the conclusion that the alleged signature of W. T. Rainey to the contract was a forgery; that the letter dated April 27,1903, was a forgery throughout, and that while the body of the letter of June 19, 1903, was in the handwriting of W. T. Rainey, there had been interpolated therein, by a hand other than his, a significant sentence.

The letter of April 27, 1903, and the interpolated sentence in the 'letter of June 19, 1903, if genuine, would tend to sustain plaintiff’s claim that a contract had been made to pay him $300 per day. After defendant’s attorney had left Philadelphia plaintiff accused him of having taken the contract with him, and for this reason plaintiff has ever since professed his inability to produce said contract. Defendant’s attorney absolutely denies having taken the contract, and it is defendant’s contention that plaintiff’s refusal to produce it results from the knowledge on his part that, if produced, it would readily be shown to be a forgery. Upon the report of his attorney defendant rejected the claim and this action was begun. After the cause was at issue an application was made to the court for a discovery, deposit and inspection of the aforesaid contract, letters and original account, upon affidavits stating the facts above detailed. Thereupon an order was made granting the motion and directing that plaintiff give to defendant a discovery and inspection and permission to take copies of the contract, letters and account. It was further ordered that, in so far as concerned the question of fact regarding the existence and whereabouts of the contract, and its possession and "control by defendant, the said question be referred to a referee who was appointed to receive and hold the documents, as well as to take testimony for the information of the court, reporting thereon with his opinion as to the existence, control, possession and whereabouts of said contract, with a requirement that if the referee should find that the contract was within plaintiff’s possession or control it also should be deposited with the referee to remain impounded pending the trial of the action. H o appeal was taken from this order and we are not called upon to criticise it. The parties appeared before the referee, and plaintiff stated his inability, for the reasons above stated, to produce the contract. He did produce two letters which he swore were the genuine original letters received by him from W. T. Rainey, under dates of April 27 and June 19, 1903. Defendant’s attorney reiterated'liis denial that he had taken away the-contract, and testified that the documents produced as the letters of April 27 and June 19, 1903, were .not the same.documents which had been shown to him ;by plaintiff as the genuine original letters. The testimonytakeii before the referee covered a wide range, much of it being irrelevant to the one. question referred; The referee reported that there had been deposited with him a paper purporting to be the letter of April 2.7, 1903 ; a paper purporting to be the letter of June 19, 11903, and certain loose sheets purporting to -be the account between plaintiff and W. T. Rainey. He also reported that in his opinion no such contract as that alleged by plaintiff had ever been executed. He accompanied his report with an opinion in which lie stated his reasons for believing that no contract had ever been executed, and incidentally expressed the opinion that the papers filed With him and purporting to be the letters of April 27 and June 19, 11903, were fictitious. Thereupon, on motion, ah order was made confirming the referee’s report, charging the expenses of the reference upon the plaintiff ; stating the conclusion of the court that the plaintiff had not complied with the order requiring him to make discovery because he hadmot deposited with the referee the letters of April 27,1903,. and June 19,1903, and ordering that the complaint be dismissed, with costs, and that judgment be entered to that effect, which was done. ^ It is from this order and judgment' .that, plaintiff' appeals. The order proceeds,' apparently, upon the theory that because the papers filed as the letters of decedent were not in fact his letters, but were forgeries, therefore the plaintiff has not complied with the. order. We do not think that the order can be sustained upon any such ground, for this would amount -to deciding in a isummary manner, upon testimony taken before a referee, one' of the vital questions in the case, which .the plaintiff is entitled to submit to a jury. It is true that section 808 of the Code Of Civil!Procedure provides,that where the court is informed by affidavit that a party has failed to comply with an order for. discovery, it may in a proper case direct that his complaint be dismissed,- and that a judgment be rendered accordingly. That, however, applies to ail absolute and contumacious refusal, and not to a case where the party proceeded against makes discovery of the paper upon which lie relies for the prosecution or defense of the action. In the present case the plaintiff relies upon two documents which, as • he alleges, are genuine, original letters written by the decedent, and these documents he produces and files with the referee. By these particular documents he must stand or fall. He asserts their genuineness, and cannot hereafter be heard to assert that they are not the original, genuine letters upon which he relies. Whether they are genuine or not will be one of the questions to be determined upon the trial, and cannot be determined against him summarily upon the opinion of a referee. Bor is it important to now determine whether or not they are the same documents shown to defendant’s attorney and then declared to be the genuine letters. This fact, if sustained upon the trial, will have an important bearing upon the genuineness of the letters produced and deposited with the referee, but that question is not now before us. The plaintiff complied with the order for a discovery by producing and filing the documents which he asserts to be the genuine letters upon which he relies. The object of the order has thus been attained, the defendant is apprised of what he has to meet and can have the examination of the papers which, he desires, and can prepare himself to dispute their genuineness on the trial. It is objected that neither the judgment nor the order upon which it rests is appeal-able. We find no merit in the suggestion. Our attention is called to Jones v. Sabin (122 App. Div. 666) as an authority against the appealability of the judgment. In that case an order had been made directing a judgment to be entered dismissing the plaintiff’s complaint for failing to comply with an order requiring him to give additional security upon an attachment. (Code Civ. Proc. § 3277.) The appeal was only from the judgment, and it was held that it was not such a judgment as can be appealed from under section 1346 of the Code of Civil Procedure. In the present case the appeal is from both the order directing judgment and from the judgment itself. Bo other judgment can ever be entered in the case so long as this one stands, and, hence, assuming that the judgment by itself and standing alone is not appealable, the order pursuant to which it is entered is appealable under subdivision 5 of sebtion 1347 of the Code of Civil Procedure, because it is one which “ in effect * * * determines the action and prevents a judgment from which an appeal might be taken.” As a .reversal of the order disposes of the sole authority for the judgment, it necessarily implies a reversal of the judgment. The order appealed .from,, in so far as it directs a judgment of dismissal, and the judgment entered thereon, must, therefore, be reversed, with costs to the appellant.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order and judgment reversed, with costs to appellant. Settle order on notice.  