#### Spencer Kellogg and Spencer Kellogg, Jr., Plaintiffs, *v.*George F. Sowerby, as President of the Western Elevating Association, Lehigh Valley Railroad Co. et. al., Defendants.

(Supreme Court, Erie Special Term,

August, 1900.)

Discovery — Excused, where it would tend to convict one of a crime.

The rule that no person shall be compelled in any criminal case to be a witness against himself is applicable to civil actions; and where one of the defendants in such an action, the president of an elevating association, alleged that the discovery of certain contracts, in process of performance, made between his association and certain defendant railroads, would tend to show a conspiracy among the defendants to injure trade and commerce in violation of section 168 of the Penal Code, the court vacated an order which had directed the president to make such discovery.

Motion to vacate an order requiring the defendant Sowerby to permit an inspection and copy by the plaintiffs of certain contracts made between the Western Elevating Association and the defendant railroads.

George L. Lewis, for plaintiffs.

George Clinton, for defendant Sowerby.

Kenefick, J.

This motion is based upon the ground now urged for the first time, that a discovery of the contracts in question would tend to prove the defendant Sowerby guilty of a crime. It was conceded by the plaintiffs upon the argument of this motion that these contracts would tend to show a conspiracy on the part of the defendants to injure trade and commerce, which is a criminal offense under section 168 of the Penal Code. The plaintiffs claim, *328however, that it is not shown on this motion that an inspection of these contracts would tend to prove the defendant Sowerby guilty of participation in such crime. It is well-settled law that a person is equally guilty of conspiracy whether he was a party to the illegal agreement when made, or afterwards assisted in the execution of such agreement. People v. Mather, 4 Wend. 229. It does appear that Sowerby is and was at the time the contracts were made the president of the association; that he is a member of the executive committee of said association, and that the affairs of -the association are managed by that committee, and, I think, it may be said to be fairly established by the papers used on this motion that the contracts are being carried out. These facts tend to establish that Sowerby was or is concerned in the commission of the offense. Penal Code, § 29.

Should a discovery be ordered under such circumstances? The Constitution of the United States provides that no person “ shall be compelled in any criminal case to be a witness against himself.” U. S. Const., fifth amendment. An identical provision is contained in the Constitution of this State. N. Y. State Const., art. 1, § 6. Section 837 of the Code of Civil Procedure provides: *“A*competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the (fact that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or misdemeanor, or expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness.” It is urged, however, that these provisions of law have no application in a proceeding of this character; that this privilege can be claimed only in a criminal prosecution. Such was the construction given to the provision in our State Constitution by the Court of Appeals, in the case of People v. Kelly, 24 N. Y. 74, and that case further narrowed the application of the constitutional provision to criminal prosecutions against the person whose testimony was sought. This construction was disapproved, however, in the case of Counselman v. Hitchcock, 142 U. S. 547. The ruling of the Supreme Court of the United States in the last-named case was followed and the Kelly case tacitly overruled by our Court of Appeals, in the case of People ex rel. Taylor v. Forbes, 143 N. Y. 219. Judge O’Brien, writing the opinion of the court in that case, lays down *329the broad proposition (p. 228), that *“*the principle established * * * is that no one shall 'be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which he may then or afterwards be charged, or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained.” It will thus be seen that the privilege is no longer confined to criminal prosecutions against the person whose testimony is desired, but is so enlarged as to include all civil and criminal proceedings, whether the person sought to be examined is a party thereto or not; that the privilege extends to the sources from which' or the means by which evidence of the commission of a crime or of the connection of the witness with it might be ascertained. It is apparent that the constitutional guaranty is equally applicable whether the person is sought to be examined as a witness or is required to produce as evidence books and papers in his possession. In either case it affords protection against the disclosure of incriminating evidence, if such protection is claimed. In the case of Byass v. Sullivan, 21 How. Pr. 50, it was sought to compel a witness, by subpoena *duces tecum,*to attend as a witness and produce the books of his business. He declined to produce the books on the ground that they would tend to convict him of a criminal offense. The court in passing upon the question of his refusal says (p. 53): “ The same rule of law which excuses a witness from answering questions which may tend to convict him of a crime or misdemeanor undoubtedly excuses him also from producing books or papers, the contents of which may be used as evidence against him, and tend to the same result.”

The motion to vacate the order of discovery is granted.

Motion granted.