Block v. Pross

Per Curiam: The order, in so far as it directs an examination of the defendants, may be affirmed. (Shonts v. Thomas, 116 App. Div. 854.) But in so far as it requires the defendants to produce and to impound with the clerk “ any paper writings or instruments to base a written claim of title on,” it must be modified by strildng out that requirement, for the remedy, if any, is by subpoena duces tecum. (Thayer v. Schley, 58 Misc. Rep. 352, per Leventritt, J., citing Matter of Sands, 98 App. Div. 148, and other cases.) The order should be modified further by striking out the apparent requirement that the defendants produce and impound with the clerk the “ date when defendants’ alleged occupancy began, and the name and address of the person or persons, if any, through whom defendants claim a .title, and of the acts of defendants and prior occupants, if any, of the plaintiff’s lands, showing cultivation, improvement and fencing, if any, either by defendants or prior occupants, if any, of plaintiff’s lands.” Such modification, however, is not to be taken as an absolute limitation of the right of examination upon such supposed features of the case. The order is modified in accord with this opinion, and as so modified is affirmed, without the costs of this appeal to either party. Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred. Order modified in accord with opinion, and as so modified affirmed, without costs of this appeal to either party. Order to be settled before the presiding justice.