Opinion
Argued October 3, 1963
Decided October 31, 1963
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HYMAN KORN, J.
Edward Rager and Forman Bullock for appellant.
Louis J. Lefkowitz, Attorney-General ( Samuel A. Hirshowitz of counsel), for respondent.
Order affirmed, without costs, in the following memorandum: The paper delivered by respondent to appellant was not a subpoena duces tecum such as is described in subdivision 2 of section 73 of the General Business Law but a mere request issued pursuant to subdivision 1 of that section. Such a request is not subject to a motion to vacate, quash or modify. The propriety of a licensee's failure to produce records so requested is reviewable only if and after action is taken by respondent affecting the license (General Business Law, § 79; cf. Matter of Union Ins. Agency v. Holz, 1 A.D.2d 945, app. dsmd. and mot. for lv. to app. den. 1 N.Y.2d 644, 921, app. dsmd. 353 U.S. 932).
Concur: Chief Judge DESMOND and Judges DYE, FULD, BURKE, FOSTER and SCILEPPI. Judge VAN VOORHIS dissents and votes to reverse in the following opinion.
The "request" issued by respondent under subdivision 1 of section 73 of the General Business Law had all of the characteristics of a subpoena duces tecum except the name. A legal instrument classifies itself according to its nature, and its character is not determined exclusively by its label. Unless a licensee produces all of the papers demanded under such a statute, he acts at his peril and loses his license automatically if it be later decided by the issuer of the "request" that his omission to comply with its exact terms was unreasonable. Appellant is entitled to an advance determination of this matter in this proceeding, which should be remitted for a hearing on the authority of and for the reasons stated in Matter of Hirshfield v. Craig ( 239 N.Y. 98). I express no opinion on whether this demand for the production of papers is too broad, which should be decided after a hearing on appellant's application. This has nothing to do with the irrelevant material submitted ostensibly in support of appellant's application to vacate this instrument.
Order affirmed.