#### Theodore Friedeberg and Harry Paltrowitz, Appellants, *v.*Louis F. Haffen, Defendant. Douglas Matthewson, as President of the Borough of The Bronx, Respondent.

First Department,

April 17, 1914.

Practice — subpcena duces tecum against municipal officer — questions considered on application for such subpcena.

The question to be considered on an application under rule 9 of the General Rules of Practice for a *subpcena duces tecum,*is whether the production of the original record is necessary, and if not, it is expected that the attorneys will enter into a stipulation for the use of a copy or an abstract of the record, and any party refusing so to do subjects himself to the risk of liability for the expense of procuring the production of the original.

It Is for the trial court and not for the judge or justice to whom the application for the subpcena is made, to rule upon the competency and admissibility of evidence.

An application for a *subpoena duces tecum*directing that the president of the borough of The Bronx produce written communications passing between himself and the corporation counsel should be granted, although they may be privileged under section 835 of the Code of Civil Procedure.

Appeal by the plaintiffs, Theodore Friedeberg and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of -the clerk of the county of Hew York on the 19th day of March, 1914, denying their application for the issue of a *subpcena duces tecum*directed to the president of the borough of The Bronx. The application was made pursuant to rule 9 of the General Rules of Practice, as added in 1913, and was to secure the production of certain official records.

*J. Nathan Helfat,*for the appellants.

*Terence Farley [John F. Collins*and *Benjamin Shapiro*with him on the brief], for the respondent.

Laughlin, J.:

The application was opposed on the ground that the official records sought to be produced are written communications *80which passed between the president of the borough and the corporation counsel, and that they are privileged by virtue of section 835 of the Code of Civil Procedure. It has been held that the Information given by a municipal officer to the corporation counsel, to whom he is required to apply and upon whose advice he is entitled to rely pursuant to law (See Greater N. Y. Charter [Laws of 1901, chap. 466], § 255), and the advice received, are within the protection of said section 835 of the Code of Civil Procedure *(People ex rel. Updyke*v. *Gilon,*9 N. Y. Supp. 243); and doubtless the application was denied on that ground.

We are of opinion that the learned justice in denying the motion inadvertently usurped the functions of the trial court, for evidence which is privileged *may*become admissible, and it is for the trial court and not for the judge or justice to whom the application for the subpoena is made to rule upon the competency and admissibility of evidence. The amendment made in 1913 to the General Rules of Practice by adding rule 9, requiring that a *subpoena duces tecum*in such cases shall only he issued by a judge or justice, was designed to remedy abuses that have for a long time prevailed with respect to unnecessarily requiring the custodians of public and of quasi-public records to remove them from where they are customarily kept for consultation by the public and transport them to court, when a copy thereof will answer the requirements of the litigants. There was no intention to confer authority upon the judge or justice to whom such an application is made to deprive litigants of evidence or to rule upon the competency or admissibility of evidence. If judges or justices to whom such applications are made should be permitted to grant or deny the applications according to their views of the question as to whether the evidence would be competent or admissible upon the trial of the issues, the defeated party would have no adequate review and judicial work would be unnecessarily duplicated, for the judge or justice would be obliged to examine the pleadings as if he were presiding at the trial.

The question to be considered on such an application is as to whether the production of the *original*record is necessary; and if not, it is expected that the attorneys will readily enter into *81a stipulation for the use of a copy or an abstract of the record; and any party refusing so to do subjects himself to the risk of liability for the cost or expense of requiring the production of the original by the *subpoena duces tecum.*

We are of opinion, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the matter remitted to the justice who made the order with instructions to grant the application.

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

Order reversed, with ten dollars costs and disbursements, and matter remitted to the justice who made the order with instructions to grant the application.