McCreery v. Ghormley — 9 A.D. 221

Majority

p. 221

James McCreery and Others, Respondents, v. William Ghormley and Others, Appellants.

Headnote

Discovery — exemption from testifying to a crime, a personal privilege — not applicable where the Statute of Limitations has run.

Upon an appeal from an order granting a motion made by the plaintiff for a discovery and inspection of certain books and papers, the order was affirmed upon the ground that, the Statute of Limitations, which barred any criminal prosecution, having run, the parties should not be excused from answering, or producing documents tending to prove them guilty of a crime. Subsequently a motion for a reargument was-made on behalf of one of the. defendants, and it was urged that the assumption of fact by the court that the Statute of Limitations had run was a misapprehension. It appeared, however, that, as to the particular defendant by whom the application was made, the Statute of Limitations had run.

Held, that the privilege, upon which the exemption claimed was based, was a personal one, and must be urged by each party in his own behalf;

That as the other defendants had not joined in the motion for a reargument, and as it did not affirmatively appear that it was made on their, behalf the court would not so treat it;

That the motion should be denied.

Motion by the defendant, William Ghormley, for a. reargument upon an appeal from an order of the Supreme Court, made at

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the Westchester Special Term and entered in the office of the cleric of the county of Westchester on the 23d day of May, 1896, granting a motion made by the plaintiff for the inspection and discovery of certain books and papers. The opinion in this case, written upon the decision of the appeal, is reported in 6 Appellate Division, 170.

John F. Coffin and William P. S. Melvin, for the motion.

Eugene C. Kremer, opposed.

The decision of the appeal in this case proceeded upon the ground that the Statute of Limitations had run which barred any criminal prosecution, and that, therefore, the parties would not be excused from answering, or producing documents tending to prove them guilty of a criminal offense. It is now claimed that the assumption of fact by the court that the statute.hadrun was a misapprehension, that in fact it has not yet run. The affidavit upon which the order to show cause is based is made by George Ryall, who is the attorney for the defendant William Ghormley, and the application is made iipon his behalf. Hothing appears in the papers to show that a reargument is sought for the benefit of any other person or that it is made in behalf of any of the other appellants or that they or either of them desire a reargument. So far as the party making the present motion is concerned, it affirmatively appears that he made all of the transfers of which a discovery is sought, as early as January 17,1893. And reference to the testimony referred to in the affidavit which supports the motion shows that it relates to transfers made by parties other than the present applicant. It, therefore, appears that, ¡so far as William Ghormley is concerned, the statute has run and he is not entitled to consideration on account thereof. We may not treat this as an application on behalf of the other defendants, for they have not joined therein, nor does it affirmatively appear that it is made upon their behalf. The privilege upon which the exemption is based is a personal privilege and must be urged by each party in his own behalf. (Rapelje’s Law of Witnesses, § 265 ; Southard v. Rexford, 6 Cow. 259 Ward v. People, 6 Hill, 144 .)

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The court should not be astute to relieve parties unless they present themselves standing clearly within the rule which they seek to invoke. As the statute has run as to the present applicant and none of the other defendants have asked to be relieved from the misapprehension, assuming it to exist, no cause is made for reargument.

The motion should be denied, with ten dollars costs.

All concurred.

Motion for reargument denied, with ten dollars costs.