Opinion
January 29, 1943
Leon Dashew for plaintiff.
Samuel L. Wallerstein for Jack Kornreich and others, defendants.
Charles Kraft for Jacob Press and others, defendants.
Samuel Chester for Samuel L. Wallerstein, defendant.
Steckler, Frank Newmark for Louis H. Schroeder and another, defendants.
Motion by plaintiff to examine, as adverse parties, several defendants before trial and for an inspection of books and records. The complaint pleads two causes of action and is founded on conspiracy in restraint of trade and charges that the defendants acted in concert to destroy the business of the plaintiff and his successor. The affidavits establish the competency and materiality of the examination. The defendants assert, however, that illegal acts are charged against them and therefore their answers may incriminate them. The right to refuse to incriminate oneself is a personal right and must be claimed at the time the questions are asked. This objection to the examination is without merit. ( Heit Weisenthal, Inc. v. Licht, 218 App. Div. 753.) The constitutional provision urged is not possessed by a corporation. ( James v. Hotel Gramatan, 251 App. Div. 748.) The motion to examine will be granted, therefore, as to all items except 8, 9, 10, 37, 54 and 60. The second part of the motion, to wit, production and inspection of books and records, etc., of all defendants is at this time denied without prejudice to a renewal after examination of the defendants upon the showing of the necessity therefor. However, such books and records as relate to the subject matter of the examination should be produced on the examination, pursuant to section 296 of the Civil Practice Act, for the purpose of refreshing the recollection of the defendants.
Settle order on notice.