concurred.
Judgment reversed and new trial ordered, with costs to abide event, unless plaintiff shall, in twenty days after notice of decision, stipulate to deduct amount specified with interest. If such stipulation be given then judgment, as so modified, affirmed, without costs to either party. Order reversed, with ten dollars costs and disbursements to appellant, unless, within the period mentioned, plaintiff shall stipulate to deduct fees stated in opinion from adjusted bill of costs. If such stipulation be served, then order, as so modified, affirmed, without costs to either party.
* Appeal from an order staying proceedings, upon a reference made on a motion for restitution.
The order was made upon an affidavit of the respondents counsel, stating that the plaintiff’s counsel had taken and refused to return certain affidavits used on the motion to compel the plaintiff to pay the amount by which the judgment was reduced by the General Term, which resulted in the making of an order of reference to a referee, to take proof and report as to the validity and justice of said claim for restitution. It was also stated therein that the affidavits so taken were exceedingly important, and were received to refresh the memory of the counsel and to guide him upon the trial before the referee.'
The order appealed from directed the plaintiff’s attorney to forthwith return to the clerk of the court the affidavit in question and *334that all proceedings be stayed, if defendants so elect, until the plaintiff’s attorney return the said affidavit to the clerk and obtain his-receipt therefor.
Daniels, J.:The order staying further proceedings upon the hearing before the referee was made because of the failure to produce and restore to the files an affidavit made by the counsel for the respondents. This affidavit related to facts bearing upon the merits of the application for restitution, and it was taken from the files to be used upon another trial, and after that it is stated to have been restored to the clerk, who, however, has no recollection of having received it, and is unable to find it on file. The court, considering that the attorney for the plaintiff was in fault for the non-production and restitution of the affidavit, stayed the proceedings on the reference until it should be produced and filed. This order, made in this manner, will have the effect of indefinitely staying the completion of the hearing before the referee, if the affidavit shall, for any reason, not be hereafter produced; and, as the reference has in part proceeded, and the evidence in favor of the appellant has been given, this would ,be an improper disposition to be made of the proceeding, for, instead of being stayed, it should be expedited and brought to as early a conclusion as may be practicable for tne disposition of the rights of the parties included in the reference. An order to stay proceedings will in no manner promote a just disposition of the controversy between the parties. It simply has the effect of suspending their rights and excluding the possibility of such a determination without any probable prospect of the affidavit itself being produced by reason of the stay. In addition to these considerations the affidavit does not seem to be an important document to be used in the hearing before the referee. It cannot be read in evidence in proof of the facts as they are asserted to exist in the affidavit, but the person making it will necessarily be required to be sworn and examined as a witness, upon the hearing, to prove and establish these facts, and the production of the affidavit will be no otherwise important than by way of refreshing his recollection as to those facts; and it does not appear that his recollection has become so far *335obscured iu this short period of time as to disable him from again repeating the facts without depending upon the affidavit for that ob j ect. But if the affidavit is important as evidence before the referee, this is not the regular mode of securing its production. The law has provided a different means for the attainment of that end, and that is by issuing and serving a subpoena duces tecum, directing the person or persons on whom it shall be served, diligently to seai’ch for and produce the paper before the referee, and if they fail to do that, they may be examined concerning such failure and the efforts that may have been made to obtain the paper. And from the evidence secured in that manner, the referee, as well as the court, will be able to determine whether the affidavit is still in the possession or power of the attorney for the plaintiff, and if it is, then oblige him to produce it upon the hearing. If the determination should be otherwise, then the attorney will be relieved from that direction and the case will proceed regularly upon the evidence to be secured before the referee, to a final determination, and the rights of the parties adjusted and declared and carried into effect. This is the orderly course of proceeding and the one prescribed by law to secure the production of documents which may be supposed to be in the possession of a witness upon a a trial or hearing, for use as evidence in the proceeding. And it is ample for this purpose, much more so than any order staying proceedings by any possibility can be.
The order which was made should be reversed, and the motion for the stay of proceedings should be denied, without costs.
Brady, J., concurred.Order reversed, without costs.
Decided December 81, 1886.