By the Court.*
The judgment of the j ustice and County Court must be reversed. Where a witness, who is intrusted with a written instrument executed by the parties to the action, admits its possession in court, he must produce it, and cannot shield himself by a want of service of a subpoena duces tecum, or a notice to produce.
It is the duty of the court to require.its production, in order to determine its materiality as evidence; and it is error to refuse to require its production because it may not then appear to he material evidence!
Judgment reversed.
*.
Present, Potter, Bockes, and James, JJ.