30 F. 145 | U.S. Circuit Court for the District of Eastern New York | 1887
In tliis case several questions which have arisen upon the taking of the testimony before an examiner have been presented to me for decision. The first question is whether the plaintiff can require the defendant Charles A. Chesebrough, when examined as a witness for the plaintiff, to produce certain papers admitted to be in his custody, or in the custody of his counsel for him. It appears that on a former occasion when one Harran was examined as a -witness for the plaintiff in this case, the defendant’s counsel exhibited to Harran wliat purported to be a signature attached to certain papers, and inquired of the witness whether the signature was his. As to some of the signatures Harran -was unable to state; as to others, he said the signature was his. The papers were thereupon marked for identification by the examiner, and retained by the defendant’s counsel. Upon these facts the plaintiff now claims the right to inspect the papers the signatures of which were so exhibited to Harran. I have often ruled at nid prias that the exhibition of a paper to a witness on the stand entitles the other side to an inspection of the paper so shown the witness. This ruling has not proceeded upon the ground that a paper becomes evidence in a cause by the mere proof of its execution, but upon the ground that a party is entitled to be informed as to what transpires between his opponent and a witness while
The second question arises as follows: The issue in the case is whether one Josephine Cregier was the wife of one Blasius Chesébrough, now deceased. The defendant Charles A. Chesebrough, executor of Blasius, has in his possession as executor certain papers, — such as letters of Josephine to Blasius, the alleged husband; letters of Josephine to her mother; and certain hotel bills, apparently paid by Blasius, and tending to show the relation between Blasius and Josephine, — which he is required by a subpoena duces tecum to produce. The papers, it is insisted by the counsel for the plaintiff, afford direct evidence in support of the averment in the bill of a marriage between Blasius and Josephine, and may be produced in court by a subpoena duces tecum, and may be proved by the defendant as a witness for the plaintiff. The defendant objects to the production of the papers at this time upon the sole ground that the testimony of Josephine has not yet been taken in support of the bill, and that when she is examined the defendant is entitled to have her testimony given without previous inspection of these papers, because in that way her veracity will be the better tested. Counsel for the defendant offers to produce the papers now, if the plaintiff will disclaim an intention to call Josephine as a -witness, and also offers to deposit the papers in any way that may be suggested to prevent the possibility of their loss or destruction in the mean time; but he insists, in the interest of justice, that he should be allowed to retain the papers in order to prevent their inspection by the witness Josephine prior to her examination. This is a question addressed to the discretion of the court. Considering the nature of the controversy, it seems to me that if the witness Josephine, whose veracity, it is plain, is largely involved in the controversy, should give her testimony, at least so far as relates to her marriage, without previous inspection of these papers, the court would be the better able to judge of her veracity. Such being my opinion, I decline for the
The third question relates to the right of the plaintiff at this stage of the case, before any adjudication upon the question of marriage, to go into the examination of Charles A. Chesebrough in regard to his disposition of the proceeds of the estate in question. The defendant objects to any inquiry on the part of the plaintiff at this stage of the case as to the investment of any money of the estate until the determination by the court of the primary question upon which the plaintiff’s right to the money depends, viz., the question of marriage between Josephine and Blasius. The question, it will be observed, is not as to perpetuating the testimony of Charles A. Chesebrough, but simply whether, in this stage of the case, prior to any determination of the question of marriage, which lies at the basis of the plaintiff’s right to recover, an inquiry can be gone into as to the disposal of the proceeds of the estate by the defendant Charles A. Chesebrough. In my opinion this inquiry is premature; it should be postponed until after the decision of the court upon the principal question, viz., the question of marriage.
