KATE C. CURTIS, Respondent,
PATRICK A. POWERS, Appellant.
APPEAL by the defendant, Patrick A. Powers, from an order of the Supreme Court, made at the Monroe Special Term, bearing date the 18th day of February, 1911, and entered in the office of the clerk of the county of Monroe.
John J. McInerney, for the appellant.
George D. Reed, for the respondent.
The defendant appeals from an order which convicted him of a civil contempt in failing to comply with an order of the Supreme Court, made at Special Term, for the inspection of the books and papers pertaining to the business out of which this action arises.
The action is for the dissolution of a copartnership said to exist between the parties and for an accounting. The business was a picture show and theater, carried on in the city of Buffalo,
known as the Temple Theater. A motion was made by the plaintiff for the appointment of a temporary receiver. That application was denied, but the order further provided: 'That the books, accounts, documents and papers pertaining to the Temple Theater, and business mentioned in the plaintiff's complaint from the commencement of said business up to the date of this order, be open to the inspection of the plaintiff's counsel, her manager, George D. Curtis, and to an expert accountant if desired, and copies thereof may be taken by them if desired; said inspection may be made between 10 A. M. to 5 P. M. on the 14, 15, 16 day of September, 1909.'
The plaintiff made a motion to punish the defendant for contempt, claiming that not all of the books and papers covered by the order had been produced for inspection, the defendant insisting that all books and papers in his possession or control were produced. Thereupon an order was made referring the matter to a referee, to take proof and report the same, with his opinion thereon. Upon the coming in of the report the order in question was made.
The scope of the examination before the referee seems to have taken a wide range. Many hearings were had, extending over a period of a year. The plaintiff's costs and expenses in the proceeding were fixed by the order at $2,037.82, and the defendant fined that sum and directed to pay the same to the plaintiff as her actual loss and injury sustained by the defendant's alleged misconduct.
The order, as originally made, directed that the defendant be committed to the county jail and detained there in close custody until he obeys the order of July 26, 1909, and delivers for the inspection of the plaintiff, as therein directed, the books, accounts, documents and papers pertaining to said Temple Theater business, mentioned in the plaintiff's complaint, and pays the said sum of $2,037.82, or he be discharged according to law. Upon the application of plaintiff's counsel the order was resettled and amended so as to make it more specific and certain. In the order as finally resettled and which is the one under review, it is provided that the defendant be committed, as has been stated, until he delivers for the inspection of this plaintiff, her attorneys, manager, George D. Curtis, and expert
accountant, all the books, documents and papers mentioned in count 2 of the order so resettled, and pays the sum of $2,037.82 to the plaintiff or he be discharged according to law.
The order of July twenty-sixth, which it is claimed was violated, does not in terms direct the defendant or any one else to produce the books and papers sought to be inspected; nor does it specifically describe them, and even in the final order which provides for the defendant's commitment until he produces them, the description as regards some of them is so general and indefinite as to make it uncertain what he is required to produce, or to determine by the terms of the order when he has fully complied therewith. Where a party is sought to be punished for contempt for disobedience of an order such as this, its terms should not be left uncertain and indefinite as to its direction and the books and papers sought to be covered thereby, and the practice prescribed should be followed. ( Ketchum v. Edwards,153 N.Y. 534; McCaulay v. Palmer, 40 Hun, 38; Rochester Lamp Co. v. Brigham,1 A.D. 490, 493; Goldie v. Goldie, 77 id. 12.) In Ketchum v. Edwards (supra), which reversed an order adjudging the defendant in contempt in violating a final judgment, ANDREWS, Ch. J., says: 'If, therefore, the provision in the judgment in this case, restraining the defendant from maintaining any obstructions in the way mentioned, fairly construed, prohibits not only the closing up of the way by the defendant, but any interference whatever with the way as it in fact and law existed, it may be that what was done by ...