147 N.Y.S. 1 | N.Y. App. Div. | 1914
The application was opposed on the ground that the official records sought to be produced are written communications
We are of opinion that the learned justice in denying the motion inadvertently usurped the functions of the trial court, for evidence which is privileged may become admissible, and it is for the trial court and not for the judge or justice to whom the application for the subpoena is made to rule upon the competency and admissibility of evidence. The amendment made in 1913 to the General Rules of Practice by adding rule 9, requiring that a subpoena duces tecum in such cases shall only he issued by a judge or justice, was designed to remedy abuses that have for a long time prevailed with respect to unnecessarily requiring the custodians of public and of quasi-public records to remove them from where they are customarily kept for consultation by the public and transport them to court, when a copy thereof will answer the requirements of the litigants. There was no intention to confer authority upon the judge or justice to whom such an application is made to deprive litigants of evidence or to rule upon the competency or admissibility of evidence. If judges or justices to whom such applications are made should be permitted to grant or deny the applications according to their views of the question as to whether the evidence would be competent or admissible upon the trial of the issues, the defeated party would have no adequate review and judicial work would be unnecessarily duplicated, for the judge or justice would be obliged to examine the pleadings as if he were presiding at the trial.
The question to be considered on such an application is as to whether the production of the original record is necessary; and if not, it is expected that the attorneys will readily enter into
We are of opinion, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the matter remitted to the justice who made the order with instructions to grant the application.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and matter remitted to the justice who made the order with instructions to grant the application.