Opinion
March 13, 1962
Commission of Investigation of the State of New York appeals from an order of the Supreme Court, directing the return to the office of one George Beatty of certain records belonging to him together with any and all copies, extracts, resumes or other information made from such records or obtained from such records. On or about November 14, 1961, an agent of the commission appeared at the office of George Beatty doing business as Beatty Supply Co., with a subpoena duces tecum for George Beatty requiring the production of certain records. The subpoena was not served, but certain records consisting of cancelled checks, bank records and check book stubs were obtained by the agent and taken away. The order appealed from was based upon an order to show cause granted and served on November 16, 1961, directing the commission to show cause why such records should not be returned. The moving papers asked nothing further than the return of the records taken and did not contain any blanket clause seeking other, further or different relief. The order to show cause required the commission to show cause why the records taken should not be returned. The order appealed from, however, requires turning over other material not mentioned in the moving papers or in the order to show cause. The commission concedes that Beatty is entitled to the return of the records taken. The order should not have extended the relief beyond that sought and beyond that mentioned in the show cause order. The commission was never put on notice that any additional relief would be sought or granted, and had no opportunity to oppose such additional relief. On December 7, 1961, this court directed that the order appealed from be stayed upon certain conditions, including a condition that the commission file in the office of the Secretary of State the documents and instruments in dispute, including copies, notations, computations, or work products derived therefrom. The records actually taken should be returned, and the "copies, notations, computations or work products", if any, should remain impounded in the office of the Secretary of State until the further order of any court of competent jurisdiction, in a proceeding instituted by either party, if so advised, relating to the use or possession thereof. Order appealed from modified by deleting therefrom the words "together with any and all copies, extracts, resumes or other information made from said records or obtained from said records", and by providing for the continued impounding of other data, as herein indicated, and, as so modified is affirmed, without costs. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.