198 F. 708 | S.D.N.Y. | 1912
Now the Supreme Court paid no attention whatever to this distinction, for they put the decision upon the quasi public character of the record when it was originally made, which, as I read it. subjected it as a document to production in any one’s hands, whether it hurt him or not to discover it. That certainly is the burden of Mr. Justice Hughes’ opinion, and, for the reasons I have given, I think it is the logic of the decision. If so, the question of legal title does not matter; indeed, this case shows how little it should. For the respondent concedes that Burlingame would have had to produce these books during the years 1908 and 1909, merely because he had no legal title, though he owned all the stock; but he insists that the passage of title makes the whole difference. Surely that is very dry straw.
However, all this is a very barren and futile inquiry from any point of view, because, whether Burlingame had title or not, he certainly had the right to keep the possession which he already had, and if the case of Wilson v. U. S., supra, turns in any sense upon the fact that Wilson was a trespasser quoad his corporation, then the only material consideration here is that Burlingame had absolute right of possession as against every one, including himself in his incorporated persona.
Since the respondent has been found not to have received the boxes as a lawyer, he has no privilege to decline to answer whether or not they are the books mentioned in the subpoena, and Burlingame’s injunction to the contrary cannot prevail over the demands of justice. It is not Burlingame who is compelled to act in a testimonial character, but Grant, who did not receive them within his professional privilege.
Therefore the respondent will be required in this proceeding to examine the box and packages without injuring their wrappings and to answer the question whether they contain any of the books mentioned in the subpoena. If so, he will hold these subject to the order of a new subpoena to produce the books as evidence. He is fined in any event the costs of this proceeding; that is, the referee’s and stenographer’s fee. If he should decline to produce the books upon another subpoena, the March grand jury having adjourned, a summary motion upon that subpoena will at once be followed by a committal; but there is no need in this proceeding to go further.
I confirm all the findings of the referee except the seventh. An order may be entered in accordance with this opinion.