Bigio v. Zrike , 102 Misc. 561 ( 1918 )

Finch, J.

Upon an examination before trial of defendants, composing a copartnership, proceeding before a referee, the latter has certified certain questions to the court in accordance with the provisions of the Code, and asks that the court issue its direction as to whether the questions should be answered by the defendants, and asking for instructions as to procedure in connection with the marldng for identification and introduction in evidence of certain books and documents. In answer to the request for instructions, any book or document produced before the referee by means of a subpoena duces tecum may be marked for identification, but may not for this reason be inspected. If upon examination of the witness he refreshes his recollection by the use of any such book or document, this book or document may then be inspected by counsel as to the portion so used by the witness to refresh his recollection, and the witness may be further examined regarding the same, after such inspection, by the counsel, and such portion may be marked in evidence. If it appears from the testimony of the witness that an entry is in his handwriting, and was a true statement of the facts at the time that it was made,- but that the witness even after inspecting the same cannot refresh his recollection and has no recollection of the facts, still the entry, upon the above facts having been shown, may be inspected by the counsel and the witness may be examined concerning the entry, and such entry may be introduced in evidence as an extension of the testimony of the witness. The above answers the instructions asked for, and renders unnecessary further comment in regard to such request for instructions. In regard to the questions certified, the defendant may be asked to state' the date of the first entry and the date of the last entry in a book, for the purpose of fixing the period that the book covers, provided that such defendant has used any portion of the book for the purpose of refreshing his recollection. The defendant examined should answer the question: ‘ ‘ From whom did you purchase the merchandise set forth in those bills, which you shipped to Bigio Brothers? ”

Settle order on notice.