In re Bushnell — 44 N.Y.S. 257

Majority

p. 257

(19 Misc. Rep. 307.)

In re BUSHNELL et al.

(Supreme Court, Special Term, New York County.

January, 1897.)

Headnote

Depositions—Foreign Commission—Compelling Witness to Testify.

The only power of the courts of New York to compel a witness to testify under a foreign commission is that given by Code Civ. Proc. § 920, which provides that a witness who fails to appear and testify shall be liable to the same penalties as if he were subpoenaed to attend the trial of an action in a justice court; and therefore a motion to compel such witness to testify cannot be granted.

p. 258

Application to compel John Bushnell and others to answer questions put to them as witnesses before a commissioner appointed under a rule of a court of common pleas in Pennsylvania. Denied.

Lessler & Myers, for the motion.

Evarts, Choate & Beaman (Joseph H. Choate, of counsel), opposed.

This is an application to compel John Bushnell and certain other persons to answer questions put to them as witnesses before a commissioner appointed under a rule or order made by the court of common pleas of Warren county, Pa., in a case pending in that court. The depositions in this state are taken under sections 914-920, inch, Code Civ. Proc. Section 915 provides, among other things, that where a commission to take testimony within the state has been issued from the court in which the action is pending, the commission, notice, or other paper, authorizing the testimony to be taken, may be presented in behalf of the party desiring to obtain it to a justice of the supreme court, with proof by affidavit that the testimony of the witness is material to the party. The judge must thereupon issue a subpoena to the witness, commanding him to appear before the commissioner named in the commission, at a time and place specified in the subpoena, to testify in the action. Section 920 provides the penalties that may be imposed upon a person who fails to appear at the time and place specified in the subpoena, or to testify. I am of the opinion that the only power that the courts of this state have to punish for a failure to testify is that given by this section, and that is, the person so refusing is liable to the penalties which would be incurred in a like case if he was subpoenaed to attend the trial of an action in a justice’s court;, and for that purpose the officer before whom he is required to appear possesses all the powers of a justice of the peace upon a trial. Section 2871 provides that a justice of the peace may punish for contempt by inflicting a fine not exceeding $25, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. The legislature was under no obligations, except, perhaps, the obligation of comity, to fix any punishment for a refusal to testify under a commission from another state; but, having fixed a punishment, the only punishment that can be inflicted by the court is the punishment fixed by the legislature. The remark of Mr. Justice Macomber in Re Whitlock, 51 Hun, 351 , 3 N. Y. Supp. 855 , that undoubtedly, under section 915 of the Code of Civil Procedure, a court or judge has power, when it appears that a witness refuses to answer a proper and material question upon commission, to require him to do so, and, in case he fails to answer, to punish him for it, means more than that he can be punished as provided by section 920 of the Code of Civil Procedure, is obiter.

Motion is denied, with $10 costs.