Riddle v. Blackburne — 125 A.D. 893

Majority

p. 893

Maxwell Riddle, Respondent, v. Albert Blackburne, Appellant.

First Department,

May 29, 1908.

Headnote

Discovery of libelous article to frame complaint — evidence incriminating defendant.

The plaintiff is not entitled to an inspection of an alleged libelous paper for the purpose of framing his complaint where the granting of the application would compel the defendant to furnish evidence which might be used against him in a criminal prosecution.

The defendant may oppose the motion for discovery on the ground that the paper might be used against him in a criminal prosecution, for he has no other opportunity to raise the objection.

Appeal by the defendant, Albert Blackburne, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of May, 1908, granting the plaintiff’s application for an inspection and leave to copy a certain alleged libelous paper.

p. 894

James K. Symmers, for the appellant.

G. F. Goddard, for the respondent.

The plaintiff, for the purpose of framing his complaint, seeks to obtain a discovery of an instrument which it is alleged is a libel. The effect of granting this application would compel the defendant to furnish evidence which might be used against him in a criminal prosecution. He should not be compelled to furnish such information where a discovery is applied for, as the opposition to the motion is the only opportunity that the party has to object to being compelled to furnish such evidence, and he is entitled then to take tile objection. Where a party is required to be examined he can take the objection when the questions are asked; and in such a case the party is required to claim his right to refuse to answer when the deposition is taken, but the rule settled in such cases does not apply when there is no other opportunity to take the objection than in opposing the application, as in the case of a discovery.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied.