New-York tribune., 1874-01-14
THE COURTS.
JUDGE MCUE'S LIBEL SUIT.

JUDGE MCUE'S LIBEL SUIT.
DECISION OF JUDGE TAPPEN IN THE CASE OF Mr..
sHANKs.
Justice Tappen Of the Supreme Court, Special
Term has denied the motion to vacate the order ap
pointing Judge Greenwood TO take pdrte testimony in
the case Of Alexander McCue against The TRIBUNE
Association and John Doe The opinion filed yesterday
"a at follows
The plaintiff brings the; action for an alleged hbe
The question presented the motion is Of practice
unoer Section 4ol OF the Code, seventh subdivision on
referee 70 take the affidavit OF person not party TO
the action, to be used by the plaintiff who IN applying
for the order stated that he intended 10 make motion
herein; that it necessary for him TO have the
affidavit Of the person named and that such person was
CURED. and had refused voluntary af1daVlt motion
the witness 10 set aside order the ground that it
IL authorized IL has heretofore been held that the
opposite party cannot be heard TO mpeach such order
where the person sought 10 be examined Is not party
10 the action. Erie Railway agt Champlaln s5 HOW
ISL And that the party obtaining the order should not
be embarrassed by any OF the adverse party To
set II aside. (Ramsay agt Could 81 Barb 1851 And IL
has held further, that the adverse party has no
night TO appear aud 1amine the person making
the deposition. Brooks agt Schultz, Rob Superior
The defendants claim that this being action to re-
cover damages for al alleged hbelous publication, the
rule is 10 permit discovery in such The position
s correct but discovery disclosure is sought
from defendants and they cannot between
the adverse party ana the witness lu FIGday against
Lindsay IRISH Com. Law K, !, the Court refused the
plaintiffs application to compel the deiendahts 10 tx &
by inspection recognize the handwriting and lden-
tfy the author. In Wilmot against McCaoe sim 26S'
cision in shacke against Morcouriay, JUSTIFIED the
WiImot beng sued 6y McCabe for libel filed bill of dis
eovery in and Of defense OF Justification ana Inc cOur
entertained it. Following Lord Eldon ana the 91Ie & OF
SELL $780, in which IL was held that where person brings
an actiou for libel it follows commensurate with the
right TO bring the action that the party who complains
is bound make the discovery when the otheT party
r. Iol q these
they certainly do not hold that the paintin ia lDeI
sa, tss NAV have such remedy in hs de
tense Even that, however, II not settod practce III
this country and have no application here De-
cause nothng is sought from defendants The pro-
eeedDg is purely one OF practice, ana II Is autho,5eu
materially from the proceedings for the dscovery Of
books and papers under K g. l0 and under the Code
that the adverse party cannot vacation of the
order IL remains 10 be what the rights Of the
person sought 70 be examined In this he made no
objection 10 the order when summoned by H. and he
appeared before the referee and was examined. With
I6e exception Of his refusal TO answer more
questions the examination seems " be completed In
Enc Railway sgt. Champlan before cited, the witness
appeared was sworn and partly examined, aud the
court held that under such circumstances he could not
have the order set aside There no rregaary in the
order taken by the plaintiff the examination OF the
witness has been in whole or IN part completed and
nothing sought from The Defendants BY the ORDER
can found q valld objection 10 the order.
Therefore following the established practice, the
notion must be denied with SO cost. 70 abide
the events.
on motion Of Mr.. Broadbead, counsel for Judge
McCue Judge Tappen issued order requiring Mr..
shanhs 10 sbow cause, Friday next at 10. m why
he should be punished for contempt Of court 10
fupg 70 the questions put 70 him before the
referee Appended 70 the minutes OF the referee. at
the request Of counsel for Mr. shanks s the following
note which was handed at the close Of the proceed
tngs:
The witness .states az further reasons why be
Declines 70 answer the questions, trst, the ques-
tioB who wrote the article Ia lmmsterial, as
the writing Of article 10 not Q libel The pub
bcstion only he considered nbeious The
question the article IL immsteria and irrele
saDt the fact lie privileged; and cannot have any
bearing any motion that the plaintiff may make or
sppose The information as " who wrote the article IN
uuestop IL confidential The article written In the
srdipary of business by subordinate for his
rnperioI and In confidential capacity, and is priv
NFed
In this note the referee appends the following re-
Barks: - -
eaton and followed by publication. renders both writer
and psblsher liable Bos,des, such an objection does
BOT como properly from . witnes:
, Assussi NJ Esae,yaHS = sRssSetsaS u nevsssDes