
    Lemuel Littlefield, Suing on His Own Behalf, Etc., Plaintiff, v. The Gansevoort Bank et al., Defendants.
    (Supreme Court, New York Special Term,
    February, 1909.)
    Discovery and inspection — Examination of party before trial — Procedure— Production of books and papers.
    Upon a reference for the examination of an adverse party before trial, the referee may issue a subpoena duces tecum to compel the production of books and papers necessary to refresh the memory of the witness; and his refusal to obey such subpoena is punishable as a contempt.
    Motion to punish P. Maxwell Sayford, cashier of the defendant bank, for disobeying subpoena duces tecum recjuiring defendant to produce certain books and documents.
    Katz & Sommerich, for plaintiff, for motion.
    Philip J. Britt, for defendant, opposed.
   Bischoff, J.

The referee, upon an examination of the adverse party before trial, undoubtedly ’had power to issue the subpoena duces tecum (Code Civ. Pro., § 854, Knickerbocker Trust Co. v. Schroeder, 125 App. Div. 917; Gibbons v. San Luis Mining Co., 125 id. 714), and the fact that the order directing the examination indicated the court’s refusal at that time to order the production of the books and papers in question in no way affects the validity of the subpoena (Gibbons v. San Luis Mining Co., supra), the issuance of which was, indeed, contemplated by the court in the course of the proceedings should the necessity arise. The examination developed the fact that these documents were necessary to refresh the memory of the witness, and it would appear that the referee’s discretion, so far, was properly exercised; but, if it is to be assumed that for some reason the subpoena was too broad or its requirements oppressive, still the present application must be granted, since the refusal of the party to produce the books and papers was based broadly upon the ground that it was beyond the power of the referee to issue the subpoena itself. The subpoena was issued by an officer having full authority so to do; and while, upon application for that purpose, the court might direct that it be vacated or modified in a proper case, it was, in the absence of such a direction, to be given full effect as a subpoena enforcible by contempt proceedings. Code Civ. Pro., § 14, subd. 5. Motion granted and respondent adjudged in contempt, with leave to purge himself of his contempt upon his complying with the subpoena at a time to be stated in the order and,upon payment of twenty-five dollars imposed as terms fixed with reference to the plaintiff’s reasonable expenses in this proceeding, together with ten dollars costs of the motion.

Ordered accordingly.  