85 N.Y.S. 1089 | N.Y. App. Div. | 1904
Lead Opinion
An action was brought by minority stockholders of the Miami Gas and Fuel Company, a corporation created under the laws of the State of Ohio (hereafter called the Miami Company) in the Court of Common Pleas in the State of Ohio against the Western Gas and Fuel Company and others. The Miami Company had executed and issued bonds secured by a mortgage upon its property in Ohio for the sum of $1,000,000. All of these bonds are held and owned by the Western Gas and Fuel Company, a corporation organized under the laws of the State of Kentucky (hereafter called the Western Company). The petition in the action in Ohio avers, in substance, that the defendant, the Western Company, has from time to time taken moneys of- the Miami Company to the amount of $1,406,000, for which no consideration was paid, or given to the Miami Company. That it has also received for the express purpose of being applied to the payment of the mortgage and the interest thereof further-moneys of the Miami Company, amounting to $250,000. These several sums, it is averred, should have been applied to the extin
The foregoing points were all covered by several questions in a' variety of form, which resulted in a limited answer upon the part of the witness and the refusal to answer further. To all of the questions objections were interposed by the Western Company and by the witness. The commissioner overruled the objections and directed the witness'to answer, but, notwithstanding this ruling, the witness refused to answer, except in a. limited way, or to read the entries from the books, or to identify the different accounts which, he was asked to identify. When it became apparent that the plaintiffs were to be deprived of substantial information which they sought to obtain from the witness an adjournment was taken and a motion made at Special Term for an order directing the witness
It was said in Matter of Searls (155 N. Y. 333) that what .questions were pertinent to be propounded upon such an examination were to be determined in the first instance by the commissioner in like manner as such determination would be made, by a justice of the peace in a trial before him, and that the commissioner was possessed of the same powers to enforce his decision as is possessed by a justice of the peace. It necessarily follows from this holding that when the commissioner determined that the questions were pertinent and proper and directed the witness to answer, it then became the duty of the witness to give such answer to the question as he was able, and in refusing to do so he was guilty of a contempt. It was said by Mr. Justice Patterson in Matter of Randall (87 App. Div. 245), which was an appeal from an order directing the deposit of these hooks with the commissioner: “ If the person producing the books, in obedience to a subpoena, refuses to answer questions passed upon and allowed by the commissioner, and, under such circumstances, refuses to identify the books or the entries therein which are material to the case of the examining party, a remedy is afforded by law.” The question does not turn upon whether the decision of the commissioner is right or wrong, but upon the authority of the commissioner to rule in the premises and to direct the witness to comply, with the ruling; when he has done that it becomes the duty of the witness to obey the direction. The books which Were produced before the commissioner were produced by the witness Randall; he was the secretary and treasurer of the company whose books he produced, and, therefore, entitled to the possession thereof, and, presumptively at least, is possessed of knowledge of what they showed, and it was competent for the plaintiffs to extract from the witness not only testimony that rested within the witness’ memory, but in that connection transactions pertinent to the subject-matter of the action which appeared in the books themselves. Such is the effect of otir holding in Matter of Dittmam (65 App. Div. 343). For this purpose it was not essential that it should appear that the witness had made or directed to be made the entries in the books, or that he should have had actual knowledge
We are not, however, called upon to pass upon the competency of the evidence sought to be elicited from the witness, or its admissibility upon the trial of the action. That will become a matter for determination by the Ohio court when the commission shall be returned to it. For present purposes it is sufficient if it appear that such testimony may be competent, and so far as the examination is not entirely irrelevant to the subject-matter of the action, the court will not, nor is it called upon to pass upon the strict legality and competency of the evidence sought to be elicited. In the first instance, such questions are left for determination by the commissioner and it is presumed that such officer will limit the examination within legal bounds. It is enough for us now to say that the testimony sought to be elicited and the identification of evidence, which may be used, may be competent and may be received upon the
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the witness directed to appear before the commissioner and answer the questions propounded to him, so far as he shall be directed so to do by the commissioner.
O’Brien, Ingraham and McLaughlin, JJ., concurred
Concurrence Opinion
I concur in result of Mr. Justice Hatch’s opinion only. I cannot concur in the doctrine that a citizen of this State when examined before a foreign commissioner can be compelled to answer every question, which the foreign commissioner may hold to be proper, no matter how immaterial or irrelevant or improper it may be.
Order reversed, with ten dollars costs and disbursements, and witness directed to appear and answer as stated in opinion.