(dissenting). I dissent and vote to affirm. There is sufficient in this record amply to sustain the conviction of appellant under section 352 of article 23-A of the General Business Law, and the justices of the Court of Special Sessions of the City of New York were correct in so holding.
Under section 352 the Attorney-General is empowered not only to subpoena witnesses and compel their attendance, but also to require the production of any books or papers which he deems relevant or necessary to the inquiry. If a person subpoenaed to produce the books or papers fails without reasonable cause when ordered so to do by the officer conducting such inquiry, he shall be guilty of a misdemeanor. The case at bar presented to the court a flagrant violation of this section in that this defendant repeatedly and willfully failed without reasonable cause to produce the books and records pursuant to the command of the subpoena.
This case presented but a simple issue of fact, namely, whether there was reasonable cause for the refusal of the defendant to produce the corporate books. The triers of the facts have found against the defendant, and their finding cannot be said to be against the weight of the evidence. The books, moreover, were produced after the conviction of the defendant, thus showing unmistakably that they could have been produced before. The appellant urges that his refusal was in good faith and that this should have been so held by the trial court. It appears, however, in this record that the appellant originally gave as an excuse that the books had not been sent to him and-later the palpably false testimony that he did not know where they were. Later he testified that the board of directors had refused to allow him to obey the mandate of the subpoena, thus showing that his first excuse was false. The trial court under these circumstances was justified in rejecting . the excuse offered by defendant, namely, that bis board of directors would not authorize the production of the books “ until we can get more information as to the length of time the books would be held and until they had counsel look into the matter.” Whether defendant acted in good faith presented a question of fact and not one of law, and this court should be very reluctant to override *166the determination of the trial court, particularly under present conditions when it is so necessary that the law-enforcing agencies should not be impeded by technicalities. If, when the record contains evidence of the bad faith of the defendant, it becomes possible for him to avoid production of the books because he testified that the directors of his corporation refused to permit such production, and this court is to hold that the testimony of the defendant as a matter of law is sufficient to excuse the production of such books, then prosecutions by the Attorney-General of fraudulent practices will be seriously impeded.
The judgment appealed from convicting the defendant should be affirmed.
Judgment reversed, the information dismissed and the fine of $500 remitted.