M'Keon v. Lane — 2 N.Y. Super. Ct. 520

Majority

p. 520

Hugh M‘Keon versus David Lane.

Headnote

A petition for a discovery, under the provisions of the revised statutes, (vol. 2, p. 199,) must present a proper case for the equitable interposition of the court, or it will be denied. And where the petitioner can have all the relief the nature of his case requires, by pursuing the ordinary practice of the courts of law, the power of compelling a discovery, conferred by the statute, will not be exercised.

This was a petition for a discovery, under the provisions of the revised statutes. The plaintiff brought an action of debt against the defendant, to recover of him the penalty of fifty dollars, [1 R. L. 524, sec. 20,] for not appearing as a witness in a certain cause, wherein M‘Keon was plaintiff, and one Caherty was defendant. It appeared by the petition of the plaintiff, (which was verified by affidavit,) that the original subpoena was served upon the defendant, instead of a copy; that the defendant received the original, retained it in his possession, and that the plaintiff had no copy in his possession, or under his control. He, therefore, prayed for an order to compel the defendant to deliver to him a sworn copy of the original, or to deposit it in the office of the clerk of this court, that he might take a copy, to be used as evidence at the trial of the cause.

Mr. J. R. Whiting, for the defendant, contended,

that he was not bound to answer, or make any discovery, which might subject him to a penalty. [He cited, 1 Pet. Rep. 100 . 104. Bishop v.

p. 521

Bishop, Tothill’s R. 17. M. 1638. Cary v. Mildmay, Ib. 7. Bridg. Eq. Dig. tit. Discovery, vol. 1. p. 217.]

Mr. D. Graham, contra, for the plaintiff,

relied upon the statute. [2 R. S. 199. 281. He cited also, the 28th rule of the Supreme Court. 2 Arch. Prac. 196. 3 Anstr. 634.]

The statute upon which the plaintiff has brought his action, can hardly be considered as a penal one. If it were, this court, following the practice and adopting the principles of the Courts of Equity, would refuse to grant the prayer of the petition. But the act in question is to be viewed, rather as a remedial act, and we may grant the relief sought, if the petitioner has presented a proper case for our interposition. The courts of law are not compelled, by the provisions of the revised statutes, to grant relief upon all occasions, but they are clothed with a discretion, to be exercised according to circumstances.

In this case, the plaintiff can have all the relief he requires, by pursuing the usual practice. He may give the defendant notice to produce the subpoena at the trial, and if he refuse to do so, the plaintiff can then give secondary evidence of its contents. The prayer of this petition must, therefore, be denied ; but we deny it without costs, and wish it to be understood, that witnesses, who disobey the process of subpoena, must abide the conse. quences of their disobedience, and will not meet with any particular favor from the court.

Prayer of the petition denied, without costs.

[D. Graham, Jun., Att’y for the plff. J. R. Whiting, Att’y for the deft.]