Opinion
November 4, 1921.
Robert S. Sloan of counsel [ George N. Davis of the Delaware bar with him on the brief; Frueauff, Robinson Sloan, attorneys], for the appellant.
Glenn M. Congdon, for the respondent witness.
This appeal is from so much of an order of the Special Term, New York county, as denies the application of the petitioner for an order directing the respondent, a witness, to answer certain questions pertinent to the issues which were propounded to him during the taking of his deposition under a commission issued out of the Superior Court of the State of Delaware, in and for the county of Kent, in that State.
Upon the examination the respondent refused to answer said questions upon the ground that his answers might incriminate him. An examination of the record convinces us that the respondent was not acting in good faith in refusing to answer the questions propounded to him, and that his refusal to answer was not, in fact, from any fear of incriminating himself. A witness may not shield himself or be excused from answering pertinent inquiries propounded to him by the mere assertion on his part that his answers to such questions might tend to incriminate him. ( United States v. Collins, 145 Fed. Rep. 709, 712; Ex parte Irvine, 74 id. 954, 960.) It is always for the court to determine whether there is substance to such claim of the witness.
Furthermore, it appears that the matters about which the respondent was questioned occurred prior to May, 1917, and if any of his acts constituted a crime, the Statute of Limitations has run against a prosecution for any crime which the respondent's answers might tend to prove, and for this reason the respondent could not assert his statutory privilege. ( Meyer v. Mayo, 173 App. Div. 199; Woolson Spice Co. v. Columbia Trust Co., 193 id. 346.)
In no event was the respondent liable to criminal prosecution in this State, as the acts concerning which he was interrogated occurred without this jurisdiction.
We are, therefore, of the opinion that the respondent has failed to show that there is any real or substantial danger to be apprehended from answering the questions propounded to him.
The order appealed from should be modified, so as to require the respondent to appear before the commissioner on a day certain, and, in addition to answering the inquiries which the order appealed from directed him to answer, the said respondent be required to answer all other questions which were propounded to him and which he declined to answer, and which questions are numbered in red ink on the left-hand side of the transcribed testimony of said respondent so far taken, which testimony is annexed to the affidavit of Robert S. Sloan, verified September 7, 1921, and marked Exhibit "F" and filed herein. Said inquiries, in addition to those directed by the order appealed from to be answered, are numbered, respectively, 4, 5, 6, 9, 13, 14, 17, 18, 19, 21, 22 and 23. The order, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion granted.
CLARKE, P.J., LAUGHLIN, DOWLING and PAGE, JJ., concur.
Order so far as appealed from reversed, with ten dollars costs and disbursements, and motion granted. Settle order on notice.