¶1Defendant’s affidavit, to the effect that he had produced all the books and papers relating to the transactions which were in his possession, and explaining that the balance had been lost when he moved from his place of business, was uncontradicted. There would, therefore, appear to be no ground for predicating any punishment of the defendant on his failure to produce that which was either nonexistent or, at least, not. available to him. See People v. McClellan, 191 N. Y. 341, 84 N. E. 68; Chartered Bank of India v. Fire Ins. Co., 145 App. Div. 307, 129 N. Y. Supp. 1067; Ammidown v. Century Rubber Co., 14 N. Y. Supp. 769.
¶2Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.