7 A.D.2d 840 | N.Y. App. Div. | 1959
The order made at Special Term is reversed on the facts, on the law and as a matter of discretion, with $20 costs and disbursements to the appellants, and the motion is granted, to the following extent: The defendant Hyman-Miehaels Company is directed to produce all recordings of telephone conversations between its officers and the officers of Associated Metals & Minerals Corp. and Michael Flynn, Inc., during the months of November and December, 1954, and January and February of 1955, relating to the “ Cabanos ” joint venture, for the purpose of discovery and inspection by the defendants Associated Metals & Minerals Corp. of New York and Michael Flynn, Inc., and to permit the movants to make transcriptions of such recordings. Our courts neither prohibit the recording of a telephone conversation by one of the participants, nor the use of the recording as evidence (see People v. Applebaum, 277 App. Div. 43, 45, affd. 301 N. Y. 738; People v. Saperstein, 2 N Y 2d 210, 216). In Applebaum, the Appellate Division, Second Department, stated that “ A subscriber has an absolute right to record his own communications and to protect the use made of his own telephone.” The problem posed here must be distinguished from those that arise in connection with evidence obtained 'by unauthorized wiretapping. It may well be that the evidence sought herein will be material to the issues. Under the circumstances, discovery and inspection is the appropriate relief. Concur — Botein, P. J., M. M. Frank, Valente, McNally and Bergan, JJ. Settle order.
