In re Mohawk Overall Co.

• Decision Date: 17 March 1914
• Citation: 104 N.E. 925,210 N.Y. 474
• Parties: In re MOHAWK OVERALL CO. et al.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 474

104 N.E. 925

In re MOHAWK OVERALL CO. et al.

Court of Appeals of New York.

March 17, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Application of the Mohawk Overall Company and another for vacation of the subpoena duces tecum, issued in an action entitled State of Vermont, in Chancery, Windham County, Hooker, Corser & Mitchell Company, Orator, against James F. Hooker, W. H . Corser, and C. D. Whitaker, Defendants, directing the appearance before a commissioner of James F. Hooker and others individually and as officers of the Mohawk Overall Company, and the production of the books of such company. From an order of the Appellate Division, Third Department (156 App. Div. 879,140 N. Y. Supp. 1132), affirming an order of the Schenectady Special Term denying the motion, the Mohawk Overall Company and James F. Hooker, as president of the corporation, appeal. Affirmed.

William Dewey Loucks, of Schenectady, for appellants.

Charles J. Vert, of Plattsburg, for respondent.

BARTLETT, C. J.

We think that this order is appealable. The proceeding was instituted by petition for the purpose of taking a deposition within this state for use without this state under article 3 of title 3 of chapter 9 of the Code of Civil Procedure (sections 914 to 919, inclusive). It is expressly denominated a special proceeding in the Code of Civil Procedure itself. Section 914. The order denying the motion to vacate the subpoena operated as a final adjudication, to the effect that the petitioner was entitled to take the desired deposition. This disposed of the matter so far as the action of the New York court was concerned. Hence the order was a final order in a special proceeding from which the party aggrieved was entitled to appeal as a matter of right. The case is readily distinguishable from Matter of Morris & Cummings Dredging Co., 209 N. Y. 588, 103 N. E. 1127, where the order sought to be reviewed denied an application to vacate certain subpoenas duces tecum issued in an accounting before a referee in the Surrogate's Court. There the appeal was dismissed on the ground that the order was merely incidental to a trial before a referee in an unfinished proceeding pending in a court of this state, and was therefore not a final order; while here, as has been pointed out, an order upholding a subpoena to obtain evidence to use in another state, like an order vacating it, finally disposes of the special proceeding to procure such evidence so far as the courts of this state are concerned in the matter.

The litigation in which the testimony of the appellants is desired is pending in the Windham county court of chancery in Vermont. In that litigation a master in chancery has been directed by the chancellor to take evidence for the purpose of ascertaining the damages sustainedby the complainants; and to this end the Vermont court has issued a commission to a commissioner in Washington county in this state to take the deposition of the appellants. The complainant in the Vermont suit thereupon presented a petition to a justice of the Supreme Court of this state in the fourth district, praying the issuance of a subpoena in accordance with the terms of the commission, under section 915 of the Code of Civil Procedure. The Supreme Court justice thereupon issued a subpoena requiring the attendance of the appellants as witnesses before the commissioner at Schenectady, and directing them to produce at the hearing all the original books of the Mohawk Overall Company containing charges or accounts for manufactured products of that corporation against the persons named in a list attached to the subpoena, for a period of three years, and also all correspondence between the corporation and such persons in any way relating to the sales of such manufactured products during the same period. The list attached to the subpoena is printed on page 13 to 87 of the appeal book, and names 2,176 persons, firms, and corporations doing...