Opinion
May 3, 1954.
In an action for a judgment declaring respondent to be appellant's lawful wife and declaring any purported divorce decree obtained by appellant against respondent to be invalid, and restraining the appellant and his alleged paramour from holding themselves out as husband and wife, the appeal is from an order adjudging appellant to be guilty of contempt of court for refusal to answer a question on the ground that the answer might tend to incriminate him. Order reversed, without costs, and motion denied, without costs. Respondent obtained an order directing appellant to appear and be examined as an adverse party concerning any divorce purported to have been obtained by him. He was directed, but refused, on the constitutional ground mentioned, to answer the following question: "Have you at any time ever obtained a divorce decree or a purported divorce decree against Regina Wiener, the plaintiff in this action, and, if so, will you state the date, the jurisdiction in which that divorce decree was obtained and the grounds for that divorce decree." The constitutional and statutory safeguards (N.Y. Const., art. I, § 6; Civ. Prac. Act, § 355; cf. Code Crim. Pro., §§ 10, 392-a) protect a person from being required to furnish evidence which might tend to show that he has committed a crime or will "tend to accuse himself of a crime" (Civ. Prac. Act, § 355; Counselman v. Hitchcock, 142 U.S. 547, 562; People ex rel. Lewisohn v. O'Brien, 176 N.Y. 253.) When the statutes relating to the crimes of adultery (Penal Law, §§ 100, 101), bigamy (Penal Law, § 340), and perjury and subornation of perjury (Penal Law, art. 158) are considered in the setting involved at the time of the examination before trial, it is apparent that the appellant's conduct was not clearly contumacious, that he had the right to judge for himself as to the effect of his answer, and that "a responsive answer to the question or an explanation of why it cannot be answered might be dangerous" ( Hoffman v. United States, 341 U.S. 479, 487; United States v. Reynolds, 345 U.S. 1; Matter of Grae, 282 N.Y. 428; People ex rel. Lewisohn v. O'Brien, supra). Nolan, P.J., Adel, Wenzel, MacCrate and Schmidt, JJ., concur.