52 N.Y.S. 392 | N.Y. App. Div. | 1898
Upon the production of a commission issued to one Edward J„ McCabe, pursuant to an order entered February 18,1898, in an action pending in the District Court of the State of Colorado, in which Clarence II. Venner and others are plaintiffs, and the Denver Union Water Company and others are defendants, to take the testimony of Frederick Strauss and others, and upon the application of the plaintiffs in the said action, a justice of the Supreme Court issued a subpoena duces tecum requiring the said Frederick Strauss to appear and attend before the said Edward J. McCabe, the commissioner appointed aforesaid, to be examined, and to give his deposition at the instance of the plaintiffs in the action above described, and to bring with him and produce at the time and place mentioned certain documents, instruments and records therein named. Upon the said subpoena being served upon the witness, he obtained an order to show cause, returnable before one of the justices of this court at Special Term, requiring the plaintiffs in the action pending in Colorado to show cause why the said subpoena should not be vacated. The motion to vacate such subpoena was denied, and the witness appeals.
The only question argued before us was as to the power of the justice of the Supreme Court to issue a subpoena duces tecum, requiring the person named as .a witness in a commission issued by a court of another State to produce books and papers before a commissioner acting under such a commission, and that is the only question we shall consider on this appeal. The subject of the examination of witnesses in judicial proceedings is regulated by chapter 9 of the Code of Civil Procedure. Title 2 of that chapter is entitled, “ Compelling the attendance and testimony of a witness.” Title 3 is entitled “ Depositions,” and article 3 of that title is entitled
At common law 'there was a writ known as a “ subpoena ad testificandum.” It is defined as a process to compel a witness to appear and give testimony, commanding him to appear before a court or magistrate therein named, at a time therein mentioned, to testify for á party named, under a penalty therein mentioned. There was also a writ known as a “ subpoena duces tecum,” which, in addition to requiring the attendance of a witness to testify, required him to bring and produce to the court books or papers in his hands tending to elucidate the matter in issue. (See Bouv. L. Dict.) Thus we have two distinct subpmnas recognized by the law. Section 915 authorizes a justice of the Supreme Court to issue a subpoena to a witness, commanding him to appear before a commissioner named in the commission to testify. Here the subpoena issued is clearly that known as á “ subpoena ad testificandum.” There is nothing to indicate that the power was given to a justice of the Supreme Court to issue any other subpoena, or to require a witness to produce before a commissioner any books or papers, or to do anything else than appear and testify ; and applying the rule as stated by the Court of Appeals, the respondents must show some “ clear affirmative power” conferred by the statute. As we fail to find the power-to issue a
The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the subpoena vacated.
Barrett, Rumsey and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and subpoena vacated.