Riddle v. Blackburne — 110 N.Y.S. 748

Majority

p. 748

RIDDLE v. BLACKBURNE.

(Supreme Court, Appellate Division,' First Department.

May 29, 1908.)

Headnote

Discovery—Alleged Libel—Inspection oe Instrument.

Plaintiff cannot enforce against defendant a discovery of an instrument alleged to be a libel, since that would compel him to furnish’ evidence which might be used against him in a criminal prosecution, and since opposition to the motion to obtain such discovery is the only opportunity he has to object to being compelled to furnish such evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Discovery, § 117.]

Appeal from Special Term.

Action by Maxwell Riddle against Albert Blackburne. From an order granting plaintiff an inspection and leave to copy an alleged libel, defendant appeals.

Reversed, and motion denied.

Argued before INGRAHAM, McLAUGHEIN, CLARKE, HOUGHTON, and SCOTT, JJ.

p. 749

J. K. Symmers, for appellant.

C. F. Goddard, for 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 the 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 rules settled in such cases do 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 $10 costs and disbursements, and the motion denied.