March 19, 1925.
Rudolph Marks, for the plaintiffs.
Hayes Wadhams, for the defendant.
A subpœna was served upon the secretary of the defendant, requiring the production of certain books and papers before one of the justices of this court. Application is now made to modify the same, so as to compel the production of only such books of the defendant corporation as are in the State of New York, or in the possession of the secretary to whom the subpœna is addressed.
It appears that the defendant's principal place of business is in St. Louis, Mo., and that it transacts no business in this State, although it obtained a certificate to do so. By the affidavit of the secretary it is made to appear that all the books and records of the company called for by the subpœna, except those indicated, are in the possession of the corporation at St. Louis. Section 413 of the Civil Practice Act commands that a subpœna or an order as required by section 411 must be directed to the president or other head of the corporation, or to the officer thereof in whose custody the book or paper is. In this situation the secretary can only be required to produce the papers and books actually in his hands.
This is not a case where a foreign corporation invokes the jurisdiction of this court as a plaintiff, nor does it appear that the subject-matter of the action took place in this State. It has been held upon this state of facts, production of books will not be compelled. ( Kram v. Jewish World Publishing Co., 176 A.D. 840.)
Motion granted to the extent of requiring the production of the books in the possession of the defendant secretary.