People v. Marston ( 1864 )

Sutherland, J.

In my opinion, Marston, the appellant, cannot on this appeal raise the question as to the regularity of the execution. It is not necessary to decide, on this appeal, whether or not the execution was irregular in not following the judgment as to the defendants named in it.

The execution was issued against the defendant Power, and returned unsatisfied, and, from aught that appears, no motion had been made to set aside the execution for irregularity when the supplemental order was made.

The only material question presented by the appeal is, I think, whether the appellant Marston was guilty of a contempt, in refusing to answer certain questions, and in failing to produce certain boobs of account upon his examination before the referee.

By the sixth interrogatory, he was asked whether, on his examination before the referee as a witness, he was not asked “to state how much money was received by George F. Power from the firm of Marston & Power from January 1,1850, to March 1, 1863,” and whether he did not answer, that he could not tell. To this interrogatory, Marston answered that he was asked the question, and that he made answer that he could not exactly. By the seventh interrogatory, he was asked: “Were or were you not then asked, whether there were not entries in any boobs within your control, which would enable you to answer the question ? Did, or did not, the referee decide that the question was one you ought to answer, and did you, or not, then and there decline to answer it ? By his answer to this interrogatory, Marston admitted that he was asked the question; that the referee decided that he ought to answer it, and that he declined to answer it. There can be no doubt, I think, that Marston, having appeared before the referee, and having been sworn as a witness, was obliged to answer any material or pertinent question, whether he had been subpcenaed or not. If it was material for Griswold, the plaintiff in the supplementary proceedings, to know how much money was received by Power from the firm of Marston & Power, from January 1, 1850, to March 1, 1863, and Marston could not tell without certain books, it would seem material for Griswold to ascertain where the books were, whether they were within the control of Mars-ton. If he was not bound to produce the books on that day by virtue of the subpoena duces tecum served on him, returnable at a previous day, he was bound to answer the question as to his possession or control of the books, so that, if he had them, at least he might by a second subpoena duces tecum be compelled to produce them before the referee at a future day.

I think, therefore, the order appealed from can and ought to be affirmed, irrespective of the question, whether Marston was guilty of a contempt in not actually producing the books as required by the referee; but under the circumstances I think the order should be affirmed, without costs.

Leonard, J. —I think the order should be affirmed, with costs.

Clerke, J. —Marston has been guilty of repeated contumacy, and I agree with Judge Leonard that the order should be affirmed, with costs.