Opinion
April 17, 1914.
J. Nathan Helfat, for the appellants.
Terence Farley [ John F. Collins and Benjamin Shapiro with him on the brief], for the respondent.
The application was opposed on the ground that the official records sought to be produced are written communications which 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 subpœna 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 subpœna duces tecum in such cases shall only be 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 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 cost or expense of requiring the production of the original by the subpœna 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.