#### Louis Guenther, Respondent, *v.*The Ridgway Company, Appellant.

First Department,

November 7, 1913.

Deposition — examination before trial of officer of corporation in action for libel — relevancy of questions — competency of evidence for trial court — scope of examination.

Upon the examination of a defendant before trial only questions relating to the relevancy of the evidence to the issues and with respect to whether the witness is privileged from answering should be considered. The competency and admissibility of the evidence are matters to be determined at the trial.

*75Upon the examination before trial of an officer of the defendant, a corporation, in an action for libel questions relating to the truth of the alleged libelous articles are relevant.

Considerable latitude should be given in examining an adverse party before trial, for it is in the nature of a cross-examination to elicit the truth and shorten the trial.

Clarke and Scott, JJ., dissented, with memorandum.

Appeal by the defendant, The Ridgway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1913, requiring Ray Brown, the secretary, treasurer and director of the defendant, to answer certain questions which he had refused to answer on his examination under an order for the examination of the defendant by said Brown, as its secretary, treasurer and director, as an adverse party, requiring him to testify “concerning the matters relevant to the issues in this action,” pursuant to the provisions of section 873 of the Code of Civil Procedure.

*James B. Sheehan,*for the appellant.

*E. C. Crowley,*for the respondent.

Laughlin, J.:

This is an action for libel. The libelous article was published on the 5th day of August, 1911, in a periodical known as *Adventure.*The defendant admitted the publication, and that it was published of and concerning the plaintiff, and denied positively the falsity of the article, and alleged positively, as a complete defense, that the statements therein contained are true, and also alleged positively the truth of the article as a partial defense, and alleged positively, in mitigation, that the article was published “after careful investigation and with full belief in the truth thereof and without malice or malicious or defamatory intent.” The answer was verified by Brown, as of his personal knowledge, and in the verification it is stated that he derived his knowledge of the matters alleged in the answer “in the performance of his duties as secretary and treasurer of the said corporation.”

The defendant publishes *Adventure,*which it is alleged *76is a monthly periodical having a wide circulation. Brown has been in the employ of the defendant since its organization, and for a period of two or three years ending with the month of March, 1910, he was its assistant treasurer. On the 11th of November, 1911, he was elected a director and became secretary and treasurer of the company and still holds said office.

No question with respect to the propriety of granting the order for the examination, or as to whether it should have been limited in any manner, is presented for review for no appeal therefrom was taken. The order for the examination is general concerning the issues in the action, and since the order stands in its entirety, it is the law of the case that plaintiff is entitled to such examination.

Instead of appointing a referee to conduct the examination, the order directed that it be had before the justice who made the order, or one of the justices “ who may be sitting at Special Term, Part Two ” on the day fixed therefor. Where the examination is’before a referee, as authorized by section 873 of the Code of Civil Procedure, and the person whose examination is authorized refuses to answer any question, the referee is required by section 880 of the Code of Civil Procedure to “report, the fact to the court or judge, who must determine whether the question is relevant, and whether the witness is bound to answer it.” The examination in question was evidently taken before a stenographer and not in the *immediate*presence of the judge sitting in Part Two, Special Term. The order from which the appeal is taken recites that the refusal of the witness to answer certain questions was reported to the *court,*and, after hearing counsel, the order requiring him to answer was made. If, upon the trial of an action, a witness should refuse to answer a question after being directed so to do by the court, it is manifest that the trial could not be suspended in order to enable him to have the ruling reviewed, and he would be obliged to answer, or by refusing to answer subject himsp,If to punishment for contempt and have to be adjudged in contempt before he could appeal. In the case of examinations within the State under a commission issued from a sister State, or foreign jurisdiction, the rule is well settled that the *77competency and. admissibility of the evidence are matters to be determined by the foreign court, and that so far as the courts of this jurisdiction are concerned “it is sufficient if it appear that such testimony may be competent, and so far as the examination is not entirely irrelevant to the subject-matter of the action, the court will not, nor is it called upon to pass upon the strict legality and competency of the evidence sought to be elicited.” *(Matter of Randall,*90 App. Div. 192; appeal dismissed, 177 N. Y. 400.) I am of opinion that substantially the same rule should apply to examinations before trial for use within the State, and that such was the intention of the Legislature. It will be observed that the Legislature did not confer authority on the justice of the court" before whom the examination is had, or on the justice or the court if it be had before a referee, to pass upon the *competency*or *admissibility*of the evidence. It merely conferred authority to determine whether questions are *relevant,*and whether the witness is bound to answer, which evidently was intended to provide for cases in which the witness would be privileged from testifying, for by the express provisions of section 883 of the Code of Civil Procedure, it is provided that such a deposition has the same, and no other, effect ‘‘as the oral testimony of the witness would have” on the trial, “and an objection to the competency or credibility of the witness, or to the relevancy or substantial competency of a question put to him, or of an answer given by him; may be made as if the witness was then personally examined and without being noted upon the deposition.” If this were not so, it is manifest that such examinations could be readily delayed and the justices or courts of original jurisdiction would have their time occupied in examining questions and making rulings that would have no binding effect on the trial court, and a party might thus be precluded from having the benefit of evidence which the trial court would deem competent and admissible. Moreover, the time of the courts of appeal would be occupied with frivolous appeals, which would accomplish nothing, save possibly to deprive a litigant of the right to competent evidence upon the trial of his action, or to have the question of its competency presented upon the trial of the issues where a record- could be made which would enable him to pre*78sent the question intelligently to an appellate court. I am of opinion, therefore, that it is of importance to the parties to a particular litigation and to the general public, which is interested in having business before the courts dispatched, that we declare and adhere to the rule in accordance with that prescribed in said sections 880 and 883 by the Legislature that only questions relating to the relevancy of the evidence to the issues, and with respect to whether the witness is privileged from answering, should be considered on such applications.

The learned counsel for the appellant cites *Gavin*v. *New York Contracting Co.*(122 App. Div. 643) in support of his contention that the test of the propriety of questions put to a witness on an examination before trial “is, whether the testimony sought is material and proper to be used upon the trial of the action.” In that case this court held that certain questions, which manifestly called for evidence not relevant to the issue, were improper. In the course of the opinion it is stated argumentatively that, since an examination of a party before trial will not be granted unless the testimony sought is material and proper to be used upon the trial, that should be the test of the propriety of questions put to a witness on such an examination. It was not necessary to a decision of the appeal in that case to declare the rule so broadly, and I think the learned justice who wrote the opinion overlooked the fact that ■it is for the trial court, and not for the justice or the court supervising the examination, to pass on the strict competency and materiality of the evidence, provided it is *relevant*to the issues.

In the case at bar the witness does not appeal, and the objections interposed do not relate to any question of personal privilege. The first question which the witness declined to answer was preceded by a quotation from the article published, which the witness by the answer alleged as of his own knowledge was true, and the inquiry made was whether he had any knowledge or information on the subject of the article. The question was objected to upon the ground that it was incompetent, irrelevant and immaterial, and constituted an attempt to probe into the defense, and it was expressly stated that no objection to the form of the question was made. The witness was then asked, “ Is not the statement just read to you from the complaint a *79false statement? ” to which the same objections and the further objection that it called for a conclusion were interposed. He was then asked, “Did you make any investigation to ascertain whether or not the article of which we complained is true or false? ” and this was objected to “ unless it is confined to a time prior to the publication of the article.” The parties then appeared before Mr. Justice Giegerich, who directed the witness to answer the questions. On request of counsel for the defendant, the justice manifested a willingness to make a formal order so that the ruling might be reviewed. On the examination being resumed, the witness again declined to answer. He was then asked whether the defendant made any investigation to ascertain whether or not the alleged libelous article was true before it published it. He answered, “I was not officially connected with *Adventure*at that time, and had no office with The Ridgway Company and I could not answer that question intelligently, that is, at the time things were going on I had no official knowledge of it.” The question was again repeated, and the witness answered, *“I*was not working on this story.” He was then asked whether the defendant made any investigation before it published the article, and he answered, “Ido not think I am qualified to answer that.” He was then asked if he understood the question, and he asked that it be read, and it was read by the stenographer. The question was then objected to on the ground that it related to the defense and that the witness had testified that he was employed only in making pictures and had no connection with the publication of the article in question. Counsel for the plaintiff then drew attention to the answer which the witness had verified as of his own knowledge, but the witness failed to answer. The witness was then asked whether he had any knowledge with reference to the truth or falsity of one of the charges contained in the article, and he answered in the affirmative. He then testified that he did not personally make any investigation prior to the publication of the article to ascertain whether or not it was true, and added, “I knew nothing about the matter before that.” He was then asked, in effect, to state the facts with respect to whether or not the article was true or false. To this the same objections were inter*80posed, and the witness did not answer. He was then asked if the statement in the article that the police authorities of Hew York and Chicago could give the plaintiff’s record with reference to a certain matter referred to in the article was not false, and if it was not a fact that the plaintiff had no record known to the police authorities of Chicago or Hew York in connection with the matter. To these questions the same objections were interposed, and the further objection that they called *“*for the operation of the minds of other people,” and the witness did not answer. The parties then appeared before Mr. Justice Whitaker, and submitted to him the questions to which obj ections were taken, and after hearing counsel he overruled the objections and made the order from which the appeal is taken.

Although the evidence called for by some of these questions, and particularly the last, might be excluded on the trial as incompetent and immaterial, still it cannot be said to be plainly irrelevant. Those relating to the truth of the article were authorized by *Turton*v. *New York Recorder*(3 Misc. Rep. 314, 317; affd., 144 N. Y. 144). It was not material what knowledge the witness had individually with respect to the truth or falsity of the article, but if the plaintiff had been permitted to show what knowledge the witness had on the subject, it might have appeared, or been readily developed therefrom, that those representing the defendant in the particular matter, and for whose acts it was responsible, had knowledge that the article was false, or that it was published without proper investigation, which would be competent and material evidence on the question of damages *(Carpenter*v. *N. Y. Evening Journal Pub. Co.,*111 App. Div. 266) and might properly be shown on an examination of the defendant before trial. *(Mason*v. *N. Y. Review Pub. Co.,*154 App. Div. 651.) Considerable latitude should be given in examining an adverse party for it is in the nature of a cross-examination to elicit the truth and shorten the trial.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., and McLaughlin, J., concurred; Clarke and Scott, JJ., dissented.

*81Scott, J. (dissenting):

Tn my opinion the order appealed from should be reversed. It is perfectly obvious that in asking the questions which were objected to the plaintiff was not examining the defendant through its secretary, but was trying to examine the secretary as an individual witness. I quite agree as to the usefulness, in the interest of justice, of the power to examine an adversary before trial, but I think that we should be careful to guard against the abuse of that power even if it does entail a certain amount of work upon the court.

Clarke, J., concurred.

Order affirmed, with ten dollars costs and disbursements.