66 N.Y.S. 542 | N.Y. Sup. Ct. | 1900
This motion is based upon the ground now urged for the first time, that a discovery of the contracts in question would tend to prove the defendant Sowerby guilty of a crime. It was conceded by the plaintiffs upon the argument of this motion that these contracts would tend to show a conspiracy on the part of the defendants to injure trade and commerce, which is a criminal offense under section 168 of the Penal Code. The plaintiffs claim,
Should a discovery be ordered under such circumstances? The Constitution of the United States provides that no person “ shall be compelled in any criminal case to be a witness against himself.” U. S. Const., fifth amendment. An identical provision is contained in the Constitution of this State. N. Y. State Const., art. 1, § 6. Section 837 of the Code of Civil Procedure provides: “A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the (fact that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor, or expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness.” It is urged, however, that these provisions of law have no application in a proceeding of this character; that this privilege can be claimed only in a criminal prosecution. Such was the construction given to the provision in our State Constitution by the Court of Appeals, in the case of People v. Kelly, 24 N. Y. 74, and that case further narrowed the application of the constitutional provision to criminal prosecutions against the person whose testimony was sought. This construction was disapproved, however, in the case of Counselman v. Hitchcock, 142 U. S. 547. The ruling of the Supreme Court of the United States in the last-named case was followed and the Kelly case tacitly overruled by our Court of Appeals, in the case of People ex rel. Taylor v. Forbes, 143 N. Y. 219. Judge O’Brien, writing the opinion of the court in that case, lays down
The motion to vacate the order of discovery is granted.
Motion granted.