Majority
p. 156Jacob Franks, Pl’ff, v. Samuel Riemer, Def’t. (City Court of New York, Special Term, Filed December 30, 1889)
Headnote
Examination before trial—When order will not be granted.An order for the examination of the plaintiff before trial will not he-granted to enable defendant to ascertain whether the plaintiff was a party or privy to a conspiracy to obtain the note in suit.
Motion to vacate order for examination.
Jacob Monheim, for motion; A. H. Berrick, opposed.
The defendant seeks to examine the plaintiff as a -witness to enable the former to prepare his answer to the-complaint, which is on a note made by the defendant. The latter alleges in his affidavit that the note was obtained from ¡him by means of a conspiracy, and he desires to ascertain.
p. 157
whether the plaintiff was a party or privy to the crime. A bill of discovery was not maintainable where the disclosure sought might subject the party to a penalty forfeiture, or render him liable to a criminal prosecution, see cases collated in 1 Civ. Pro., 75, nor can such an examination be had under the Code, even to the extent of compelling the witness to plead his privilege as an excuse for not answering. Corbitt v. De Comeau, 44 N. Y. Superior Ct., 306; Kinney v. Roberts, 26 Hun, 166 ; Yamato Trading Co. v. Brown, 27 id., 248 . Indeed, so careful is the law in protecting a party from self crimination, that in a penal action he need not verify his answer, although the complaint is verified. Gadsden v. Woodward, 103 N. Y., 242 ; 3 N. Y. State Rep., 102. For these reasons the order for examination will be vacated. No costs.