Campbell v. Brock's Commercial Agency, Ltd.

Majority

p. 137

John Campbell and Others, doing Business under the Firm Name and Style of Campbell, Henault & Company, Respondents, v. Brock’s Commercial Agency, Limited, Appellant.

Headnote

Examination of a defendant’s officers — a plaintiff required to give a bill of particulars of matter contained in the defendant’s books.

Where, in an action based upon libel, an order for a bill of particulars requires the plaintiff to give to the defendant, a commercial agency, information concerning the names of subscribers to the defendant’s reports, to whom the plaintiff claims that employees of the defendant have sent the alleged libelous articles, which information the defendants books alone contain, the plaintiff is entitled to an order requiring the defendant’s officers to submit to an examination, where it does not appear that such examination will necessarily involve the giving of any information which will charge such officers with a crime.

Appeal by the defendant, Brock’s Commercial Agency, Limited, and Henry Brock, president and director of the defendant, and Thomas H. Wallace, secretary and director of the defendant, from a judge’s order, entered in the office of the clerk of the county of New York on the 10th day of February, 1899, directing the examination of Thomas H. Wallace, secretary and director of the defendant, Henry Brock, president and director of the defendant, and A. W. Hatton, director of the defendant; also from two orders made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of January, 1899, and on the 8th day of February, 1899, respectively, denying the defendant’s motion to vacate such order.

p. 138

The plaintiff had been required by an order to give to the defendant a bill of particulars of each person, firm and corporation tó whom it intended to give evidence that the alleged libel was delivered, published or circulated.

D. M. Barter, for the appellant.

Henry W. Beam,, for the respondents.

The order of January seventh, requiring the defendant’s officers to appear and submit to an examination, was a judge’s order made ex parte. The remedy, if it was irregular or improper, was by -a motion to set it aside and not by appeal. The appeal, therefore, from this order was unauthorized and must be dismissed.

The order for a bill of particulars required of the plaintiff to give to the defendant certain information which the defendant’s books alone contained. It was, therefore, important, before the plaintiff could comply with this order and make the bill of particulars, that he should obtain from the defendant this necessary information. For that reason it was proper to deny the motion to vacate the order for an examination. The fact that the plaintiffs know the names of certain of the subscribers to the defendant’s reports is not a reason for denying them the right to examine the books of the defendant and ascertain the names of all the subscribers to whom this libel was delivered, because they have the right to make proof of a delivery of the libel to any one whom they-learn to be such at any time. It is, therefore, necessary that they should know the names of all the subscribers in order that they may be able to put them in the bill of particulars, and thus be in a situation to prove the delivery to any subscriber, if they shall subsequently ascertain that such delivery was made. The examination will not. necessarily involve 'any information which might charge the officers of this corporation with a ci’ime. The officers are not charged with libel, and it cannot be assumed that they are personally guilty because one 'of the employees of the corporation sent these libelous articles' to the subscribers. (People v. Armour, 18 App. Div. 584 ; Fox v. Miller, 20 id. 333.) If upon the examination any question should be asked of one of the officers as to which he should be entitled to claim his privilege

p. 139

because it tended to convict him of crime, he would then be at liberty to assert his privilege, and the judge before whom the examination was taken would be called upon to rule upon the question. (Skinner v. Steele, 88 Hun, 308 .)

For these reasons the order should be affirmed, with ten dollars ■costs and disbursements.

Van Brunt, P. J., Barrett, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

People v. Armour 18 App. Div. 584 N.Y. App. Div. 1897-06-12 p. 138