Opinion
July 9, 1920.
Charles H. Tuttle of counsel [ Davies, Auerbach Cornell, attorneys], for the appellant.
Edmond E. Wise of counsel [ Leon Lauterstein with him on the brief]; Wise Seligsberg, attorneys, for the respondent.
Present — CLARKE, P.J., DOWLING, SMITH and PAGE, JJ.
We agree with the learned justice at Special Term that neither the possibility of prosecution under the Federal Anti-Trust Law nor the possibility of indictment under statutes of other States furnishes proper grounds for defendant Nielsen's refusal to answer the questions to which objection was made. Furthermore, that the Statute of Limitations protects him from prosecution under the New York State Anti-Trust Law. (See General Business Law, art. 22, as amd. by Laws of 1910, chaps. 394, 633, and Laws of 1918, chap. 490.) We are of opinion, however, that upon the facts alleged in the complaint, and as therein alleged, the defendant could be charged with larceny under section 1290 of the Penal Law. As to these transactions the Statute of Limitations would not be a bar to criminal prosecution for five years has not elapsed since the doing of some of the acts charged. "Where it is not so perfectly evident and manifest that the answer called for cannot incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected." ( People ex rel. Taylor v. Forbes, 143 N.Y. 219, 231.)
The order will, therefore, be reversed, the objections sustained and the motion that Thorleif S.B. Nielsen be directed to make answer to such questions denied, without costs.
Order reversed, objections sustained and motion denied, without costs.