John J. Gibbons, as Director of the San Luis Mining Company, Appellant, v. San Luis Mining Company, Respondent, Impleaded with Hollister Logan and Myra B. Martin, Individually and as Executors, etc., of Walter S. Logan, Deceased, and Others, Defendants

John J. Gibbons, as Director of the San Luis Mining Company, Appellant, v. San Luis Mining Company, Respondent, Impleaded with Hollister Logan and Myra B. Martin, Individually and as Executors, etc., of Walter S. Logan, Deceased, and Others, Defendants. First Department, May 8, 1908. Deposition — subpoena duces tecum — production of books to refresh, recollection — former order not res adjudicata. Where on a reference to take the deposition of a defendant individually, as executrix and as secretary of a defendant corporation, she is unable to recollect material facts but admits that her recollection could be refreshed, the production of the books of the corporation containing entries presumptively made by her as secretary may be compelled by subpoena duces tecum, for the purpose of refreshing her recollection. Although the original order which required the production of the corporate records was modified by striking out that provision, the order was not res adjudicata so as to prevent the subsequent production of the books, when it appears that they are necessary to refresh the recollection of the witness. Appeal by the plaintiff, John J. Gibbons, as director, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 19th day of March, 1908, granting a motion made on behalf of the defendant San Luis Mining Company to vacate a subpoena duces tecum. Chester A. Jayne [Samuel S. Watson and Walter B. Raymond with him on the brief], for the appellant. Charles M. Demond, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: The subpoena was issued by a referee duly appointed by an order of a justice of the Supreme Court to take the deposition of the defendant Myra B. Martin, individually and as executrix of the last will and testament of Walter S. Logan, deceased, and of the defendant the San Luis Mining Company, by said Myra B. Martin, its secretary and treasurer, pursuant to the provisions of section 873 of the Code of Civil Procedure. The subpoena required the production of certain books and records of the corporation for the purpose of having them examined by the witness during her examination to refresh her recollection. Upon her examination which has been had in part, it appears that with respect to certain matters deemed material to the issue, she was unable to recollect the facts but admitted that her recollection could be refreshed. Some of the records concerning which she was thus interrogated and which the subpoena required the corporation to produce, were presumptively kept by her or contained entries made by her as secretary or treasurer ; but whether or not the entries were made by her, they may refresh her recollection and their production was properly required by the subpoena. The original order for the examination required the production of certain books and records by the corporation, embracing those specified in the subpoena. On motion at Special Term, it was modified by striking out this provision. The learned counsel for the appellant urges tlia't this was an adjudication that no production of the books and papers of the corporation could be required. Such is not the effect of the order modifying the original order. The order required the production of very many books-and records of the corporation, and the court on the facts presented in advance of the examination, in its discretion, relieved the corporation from the provision of the order requiring it to produce its records. The order, however, as it stands, authorizes the complete examination of the witness and of the corporation through the officer specified, as fully as the same might be had upon the trial, and upon its appearing on the examination that all of the material knowledge possessed by the witness could not be obtained unless she had before her certain books and records of the corporation for examination by her to refresh her recollection and enable her to testify, it was perfectly proper for the referee to issue a subpoena duces tecum in behalf of the plaintiff to require the corporation to produce the books and records, not for inspection by counsel for the plaintiff nor for the purpose of introducing them in evidence with a view to contradicting the witness or otherwise, because that must be deferred until the trial, but for the purpose of refreshing the recollection of the witness and enabling her to give the material testimony sought to be obtained. It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and tlie respondent corporation should be required to produce the books and records specified in the subpoena before the referee at a time and place to be specified in the order on the settlement thereof. Ingraham, McLaughlin, Clarice and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied as stated in opinion, with ten dollars costs. Settle order on notice.