The opinion
McNally, J.
(dissenting). There was insufficient basis to adjudge appellant in contempt insofar as item C of the mandate was concerned. This item dealt with the books and records, *130 other than checkbooks, relating to the bank accounts of 76 Monroe Corporation at the Trade Bank and Trust Company and Manufacturers Trust Company for the period from January 1, 1954 to February 28, 1958.
There is sufficient proof in my opinion to sustain the mandate with reference to items A and B. Item A relates to check stubs and check books for 1954 in the Trade Bank and Trust Company for the account of 76 Monroe Corporation. Item B relates to check stubs in respect of the account of Manufacturers Trust Company from January 1, 1954 to April 30, 1954 maintained by 76 Monroe Corporation. There was no dispute that such check stubs and check stub books originally existed. In view of the fact that the appellant twice falsely testified before the Grand Jury that he turned over all the checks and check stubs, and when subsequently directed to so do by the court produced substantially all the missing items, it was within the competence of the learned trial court to find, in effect, that this witness had failed to give a reasonable explanation of his inability to produce the records aforesaid. (Nilva v. United States, 352 U. S. 385, 395 ; Matter of Bleakley v. Schlesinger, 294 N. Y. 312, 317, 318 .)
The mandate should be modified by striking therefrom item C, and otherwise affirmed.
Bkeitel, J. P., Rabin and Bebgan, JJ., concur with Stevens, J.; McNally, J., dissents and votes to modify, in opinion.
Order and mandate of commitment reversed on the facts and on the law; the mandate vacated and the determination of the Court of General Sessions annulled.