In re Dittman

Hatch, J.: This is a proceeding instituted under and pursuant to the provisions of the Code of Civil Procedure (§§ 914, 915). The action in which the witness’ deposition is being taken is brought by the respondents Dittman and Haas, as holders of shares of the preferred stock of the Kentucky Distilleries and Warehouse Company for a dissolution of the company and the winding up of its affairs for the benefit of its creditors, and is now pending in the Hew Jersey Court of Chancery. Briefly stated, the complaint shows that the Distilling Company of America, having become the owner of about ninety per cent of the capital stock of the Kentucky Distilleries and Warehouse Company, and of about the same proportion of the capital stock of various other companies engaged in manufacturing, selling or dealing in American whiskies, has combined the business of each of said corporations with its own and, having named the directors and officers of the Kentucky company, so manages and controls its business and disposes of its profits and incumbers its property as to benefit the Distilling Company of America, to the detriment of the Kentucky Distilleries and Warehouse Company; that the directors of the Ken-" tucky company are in point of fact agents and servants of and interested with the Distilling Company of America, and are managing the affairs of the Kentucky company to the detriment of the stockholders, by diverting its profits and business to the other companies controlled by the defendant distilling company, and that they have rendered the stock of the Kentucky company, which in June, 1899, was of great value, unmarketable and valueless. The witness Thomas H. Wentworth is secretary of both defendant corporations, and has an office and possession of the books of the same in the city of Hew York. Upon the hearing before the commissioner he declined to answer certain questions which were propounded to him, and thereupon the examination was suspended and the plaintiffs in the action applied to the court at Special Term for an order directing the witness to answer such questions. The motion was granted and an order entered directing the witness to answer the questions, and from such order the witness takes this appeal. So far as objection was interposed to the witness answering the [345] question as to the profits earned by the Kentucky Distilleries and Warehouse Company, based upon the ground that the books of the company were the best evidence, it was unavailing; the question was proper and should have been answered. The books of account of the company were mere declarations in its favor, and would not be"admissible as against the plaintiff in this action. (Rudd v. Robinson, 126 N. Y. 113.) The plaintiffs, of course, would be entitled to the oral statement of the witness upon this subject, and also, if it chose, to the entries contained in the books; for, with respect to them, it might constitute an admission. To this extent, therefore, the order below was proper. As to all of the other questions propounded to the witness, their substantial character was a mere question as to whether the witness would make an examination of the books and refresh his recollection so as to enable him to answer the questions propounded, of which he had no recollection, except as shown by the books. The witness, by the practical direction of his counsel, refused to make any promise that he would examine the books, or to answer upon that subject. For all practical purposes, therefore, it is clearly apparent that the testimony sought to be elicited was a statement of what the books contained. We know of no power residing in the court to compel a witness to make an outside examination of books and papers not before the court. The witness was not commanded so to do by the subpoena which was served upon him. All which that required was that the witness should appear and testify to such facts as rested within his memory, and when that failed he could not be compelled or required to go to outside sources in order to aid his recollection. His full duty was discharged when he gave his recollection in answer to the questions. There was nothing, therefore, in this refusal which justified the order which was made. It is quite true that the witness is secretary of both companies and had many of the books in his custody or under his control, and many of them were then in the same building in which the examination was being conducted, but they were not before the commissioner and the witness was under no more obligation to subsequently make an examination of their contents to aid his memory than as though the books were, elsewhere and not under his control. It does not appear that the commissioner made any ruling whatever as to whether the [346] questions were proper or not. • The Court of Appeals has said that what questions are pertinent or proper must be determined by the commissioner, at least in the first instance. (Matter of Searls, 155 N. Y. 333.) The plaintiffs seem to have mistaken the practice in connection with eliciting testimony from the witness in connection with the books. Section 914 of the Code of Civil Procedure provides that upon the taking of such a deposition a subpoena may issue requiring the production of books and papers in connection with the testimony of the witness, and the next section requires that the witness give testimony in connection with them, subject to punishment for contempt for refusing so to do. Prior to 1899 the Code did not contain authority for the issuance in a proceeding of this character of a subpoena duces tecum to compel the production of books and papers. (Matter of Strauss, 30 App. Div. 610.) In that year, however, the Legislature, in order to meet the condition produced by the decision in this case, and in Matter of Searls (supra), amended these sections of the Code, and the authority is now ample to examine not only a witness, but to compel the production of books and papers. (See, also, Rule 17, General Rules of Practice.) It would necessarily follow from the views above expressed that the order should be modified by limiting its application to the questions relating to the profits earned by the Kentucky Distilleries and Warehouse Company. But another consideration intervenes to prevent this result. Our attention is directed to no authority which confers right upon a witness to appeal from such an order. Nor" are we able to find such authority. Rule 17 of the General Rules of Practice authorizes a witness who is subpoenaed to attend and give his deposition to apply to the court to vacate or modify such subpoena, and this seems to be the extent of his rights. The witness made no such application ; on the contrary, he submitted himself .to the examination and cannot now be heard to question the propriety of questions propounded for him to answer. If there is any abuse in this regard the only persons.authorized to invoke the remedy to either protect the witness or exclude the testimony is the party, as he, in the legal sense, is the only person aggrieved thereby. (Ross v. Wigg, 100 N. Y. 243; Martin v. Kanouse, 2 Abb. Pr. 390.) In Matter of [347] Garvey (33 App. Div. 134) the court held that it was not for the witness to criticise the proof of materiality as defective or insufficient upon which the subpoena was based-; that such questions should be left to the parties; and in Matter of Heller (41 App. Div. 595) the court reaffirmed such doctrine. We see no distinction, in principle, between such a question and the present. If the party does not desire to appeal the witness has no standing so to do, as no one can be legally said to be aggrieved thereby. To authorize such a practice, it seems to us, would result in the greatest confusion. If these views are sound it follows that the appeal should be dismissed, with ten dollars costs and disbursements. Patterson, J., concurred in opinion of Hatch, J.; Laughlin, J., concurred, exceptas to witness not having right to appeal; Van Brunt, P. J., and Ingraham, J., dissented.