Opinion
June Term, 1899.
Roger A. Pryor, for the appellants.
James W. Gerard, Jr., for the respondent.
Present — PATTERSON, O'BRIEN, INGRAHAM and McLAUGHLIN, JJ.
Whether or not Mr. Palmer was guilty of contempt was correctly determined below. The record discloses a clear case of a deliberate and sustained effort to impede the examination and to render it abortive. The suggestion that the witness could not produce the books was clearly an afterthought, and was availed of to escape the consequences of repeated refusals, under the advice of counsel, to obey the terms of the order or the directions of the referee. Had this plea been presented in good faith when the order was made, or upon the examination, or upon the motion to punish, it would have received consideration from the court. But its weakness is apparent, not alone because it was not availed of until every other excuse for impeding the examination had been exhausted, but from the further fact that after it was presented the counsel for the defendants, who were present advising the witness, objected to questions directed to showing that the witness, as treasurer, did have the books required on the examination, and, had he so desired, could have produced them. The facts and questions involved on the motion to punish, and again presented here, are so fully considered in the opinion of Mr. Justice BEEKMAN that, were it not for a provision in the order which, in addition to committing the witness, imposes a fine, we should deem further discussion unnecessary.
The amount of the fine, $345.92, was the actual loss and injury to the plaintiff for fees of the referee and stenographer, and for printing; and if there were authority for imposing it, we would sustain it as being both reasonable and just. As correctly urged by the appellants, however, the Code makes specific provision for the contumacy of a witness, differing from the general authority conferred by section 2457 and similar sections of the Code, to punish as for a contempt. The penalty is for disobeying a subpœna. For disobeying a subpœna and refusing to attend, the court not only has the right to punish, but may compel the contumacious witness to "pay the damages sustained by the person aggrieved," as prescribed by section 855. Where, however, the witness is present at the trial or hearing and there refuses "to answer a legal and pertinent question, or to produce a book," a judge may "by warrant commit the offender to jail, there to remain until he submits to do the act, * * * or is discharged according to law." (Code Civ. Proc. § 856.) By express provision of section 876 of the Code, having reference to the taking of depositions before trial, mention is made of section 856; and we think the appellants rightly contend "that without this reference to 856, the section (876) would not have applied, and that by the reference to 856, all other provisions of the Code are excluded. Expressio unius exclusio alterius." As no authority to impose a fine is given by section 856, its imposition was unauthorized.
The further contention, that the order appealed from is irregular because made by the court and not by a judge, is untenable. The witness has no grievance because he was notified and an opportunity given to him to be heard, instead of being proceeded against ex parte. Upon the proceeding below, after a hearing, it was determined by the court that he was guilty of a contempt. The court did not commit the witness, however, but decided what he must do, giving him a reasonable time to comply, and then directing "that the plaintiff may apply ex parte to a justice of this court upon proof by affidavit of the violation of the provisions of this order * * * for a warrant." Such a hearing and decision by the court may have been unnecessary to authorize a commitment, as held in Matter of McAdam (7 N.Y. Supp. 455); but, as already said, the procedure adopted was an advantage to the witness, and the objection now urged is highly technical.
The order should be modified by striking out the fine, and, as so modified, affirmed, without costs.
Order modified as directed in opinion, and as modified affirmed, without costs.