Davies v. Lincoln National Bank — 19 N.Y. St. Rep. 905

Majority

p. 905

Davies, Receiver, etc., Pl’ff., v. The Lincoln National Bank, Def’t.

(Supreme Court, Special Term, New York County,

Filed December 14, 1888.)

Headnote

1. Usury—Bank—Penalty.

The takirig of usurious interest by a bank, if proved, will subject it to a penalty, or forfeiture of the entire interest received.

2. Examination op defendant—Code Civ. Pro., § 872—When order will NOT BE GRANTED.

An order to examine the defendant as a witness for his adversary, under section 872 of the Code, subdivision 7, will not'be-granted, when his evi dence will subject him to a penalty of forfeiture.

3i Same—Corporation.

A corporation can only be examined through its officers or agents, and the examination of such an officer or agent, who is required to produce the books of the company, is, under subdivision 7, section 872 of the Code, an examination of the defendant itself.

I suppose the examination of Mr. James was ordered under subdivision 7, section 872 of the Code, which provides that “if the party sought to be examined is a corporation, the affidavit shall state the names of the officers or directors, or any of them, whose testimony is necessary or material,” etc.

The party sought to be examined in this case, and whose books are to be produced, is not Mr. James, but the bank, which is the defendant, and the sole object of the examination is to obtain evidence that the bank has taken usurious interest.

The taking such usurious interest,, if proved, will subject the bank to a penalty or forfeiture of the entire interest received. U. S. Rev. Stat., § 5198.

It has been frequently decided that a defendant cannot be examined as a witness for his adversary when his evi

p. 906

dence will subject him to a penalty or forfeiture. Phœnix v. Dupuy, 2 Abb. N. C., 146 ; Brandon Mfg. Co. v. Bridgman, 1 4 Hun, 122 ; Kinney v. Roberts, 26 Hun, 166 ; 58 N. Y., 383 ; Frazer v. Davids, 1 How. Pr. (N. S.), 490; Walker v. Dunlevey, 2 Civ. Pro. R., 6.

The Code itself (section 837) provides that a witness shall nob be required to give an answer which will tend to expose him to a penalty or forfeiture.

Of course a corporation can only be examined through its officers, directors or agents, and the examination of Mr. James, who is required to produce the books of the bank, is, under said subdivision 7 of section 872 of the Code, an examination of the defendant bank itself, and as a sole object of such examination is to obtain testimony which will subject the bank to a penalty or forfeiture, I do not think the examination can be had.

The motion to vacate order granted, with ten dollars costs to abide the event.