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Ely v. Perkins

57 Misc. 361 Court N.Y. Sup. Ct. English

Delivered by Brown, J.

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p. 361
W. Caryl Ely, Plaintiff, v. Erickson Perkins, Clarence W. Cady, Henry D. Quimby, Arthur C. Moore, John G. Beatty and Lucius G. Leonard, Comprising the Copartnership of Spader & Perkins, Defendants.
(Supreme Court, Erie Special Term,
January, 1908.)

Headnote

Discovery and inspection — Examination of party before trial — Right to remedy — Privileged matter.
Where a plaintiff, upon an affidavit that his cleric had stolen from him certain money and securities and had delivered the same to defendant who had received the property in bad faith and converted it to his own use, obtains an order requiring defendant to be examined as to the transaction for the purpose of enabling the plaintiff to frame his complaint in an action for conversion, such an order will bg vacated, upon the ground that the examination would be compelling the defendant to connect himself with the crime of criminally receiving stolen property, it not appearing that he was expected to testify to any fact except such as would be privileged.
Motion by defendant Cady to vacate an order to examine him for the purpose of enabling plaintiff to frame his complaint.
Joseph G. Dudley, for motion. .
Kenefick, Cooke & Mitchell, opposed.

On December 26, 1907, an order was made requiring defendant Cady to be examined for the purpose of enabling plaintiff to frame his complaint. It appears from the affidavit upon which such application was made that the “nature of the action is to recover damages for the conversion by the defendant of moneys and securities owned by the1 plaintiff and which were embezzled and stolen from him by one Hugh J. McDonald, a clerk in the deponent’s employment, and which said moneys and securities the defendants received from said McDonald in bad faith and have converted to their own use; ” and it also appears that plaintiff is unable to obtain an accurate statement of the amounts of moneys and

p. 362
securities belonging to him, and desires to examine defendant Cady for the purpose of ascertaining in detail the moneys and securities belonging to plaintiff and delivered to defendants by McDonald, together with dates of the payments and delivery thereof. Upon such affidavit an order was made requiring, defendant Cady to be examined before a referee concerning the moneys and securities paid and delivered to the (defendants by McDonald, the dates and amounts of each payment and delivery, and the transactions in the form of buying and selling stocks which McDonald had with defendants and the disposition of any securities received by the defendants from said McDonald.

Defendant Cady moves to vacate the order for his examination upon the ground that all testimony he may be called upon to give' on the examination will tend to connect him with the crime of criminally receiving stolen property knowing it to have been stolen, and that such testimony is privileged.

It has been uniformly held that a person will not be compelled to submit to an examination and be forced to .claim his privilege unless there are matters concerning which he is expected to testify that will have no tendency to criminate him. Matter of Attorney-General, 21 Misc. Rep. 101 ; Brandon v. Bridgman, 14 Hun, 122 ; Bailey v. Dean, 5 Barb. 297 ; Phoenix v. Dupuy, 2 Abb. N. C. 146 ; Kinney v. Roberts, 26 Hun, 166 ; Yamato Trading Co. v. Brown, 27 id. 248 ; Andrews v. Prince, 31 id. 233 ; Skinner v. Steele, 88 id. 309 ; Fogg v. Fisk, 30 id. 61; Davenport Glucose Mfg. Co. v. Tausig, 33 id. 32; Davies v. Fish, 35 id. 430; Farmer v. National Life, 73 id. 522; Haynes v. Hatch, 15 N. Y. Supp. 615 ; Kellogg v. Sowerby, 32 Misc. Rep. 327 . In Abbott-Downing Co. v. Faber, 87 Hun, 299 , it was held that it must affirmatively appear that there is some fact which will not criminate the party to be examined, concerning which he is to be examined, in order to warrant such examination.

The plaintiff claiming that McDonald has stolen his property and delivered the same to defendants who received the same in bad faith from McDonald, every element necessary to constitute a crime is charged; and it is difficult to see what

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item of evidence can be elicited 'from defendant Cady on the proposed examination under this order that will not be connected with some element of a crime. It surely will be a link that may be added to a chain of testimony tending to the result of criminating the defendant Cady; such an examination would be compelling a person to connect himself with the commission of a crime.

It not appearing that there is any fact to which defendant Cady is expected to testify except such as would be privileged, the order to examine him must he vacated.

Order vacated.

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