Davis v. Lehigh Valley Railroad , 97 N.J.L. 412 ( 1922 )

The opinion of the court was delivered by

Bergen, J.

This action was brought in New York and the court of that state issued a commission, on the application of plaintiff, to take testimony in this state before Mr. Banter as commissioner. Under the statute of this state, section 58 relating to evidence (Comp. Stat., p. 2237), upon the issuing of such a commission, if any witness named shall lefuse to attend and give testimony, any Supreme Court justice may make an order awarding process of subpoena for such witness to appear before the commissioner and testify. Such course was taken in this case and order for a subpoena duces tecum made. A rule to show cause ivas subsequently allowed, returnable before this court, why the order of the justice should not be set aside. The present proceeding is to have that rule made absolute and the only question is whether the order was unlawfully made. The grounds are that the statute does not expressly authorize a subpoena duces tecum and therefore the justice had no power to make the order, and secondly, that it was not sufficiently explicit as to the paper to be produced because it required the production to lie only of such papers “as relate to the issue in the above entitled cause.” The subpcejna duces tecum issued was explicit and is not under review, the only proceeding objected to being the order. That under! this statute a subpoena duces tecum might be ordered was adjudged by Mr. Justice Garrison, sitting for the Supreme Court, In re Donald & Healy, 87 N. J. L. 691, which is controlling so far as ays are concerned. But in addition we approve of the course taken by Justice Garrison, for the statute is remedial, and it is not limited to a subpoena ad testificandum, but applies to all witnesses and the production of all papers legally pertinent to the issue about which the wdtnesses may testify or identify.

The purpose of the act is to secure the testimony of witnesses not Avithin the jurisdiction of the court issuing the commission, and that testimony includes documents, pertinent to the issue, and the word “subpoena,” as used in the statute, AA-as any subpoena necessary to accomplish the intention of the statute. The order is not beyond the jurisdiction of the justice of the Supreme Court conferred by the act. The ease of Stengle v. Stengle. 85 N. J. Eq. 277, is not applicable, for, as the Chancellor observes in that case, letters rogatory are not necessary in a proceeding under the statute above referred to. (The statute is in aid of comity between sister states and as its purpose is to assist in the due administration of justice it should be liberally construed.

The second objection is that the order is indefinite as to the documents required which are those that relate to “the issue in the cause.” This must be read in connection with the petition on which the order is based;, and in it the issue, to which the testimony required relates, is the claim of plaintiff that he was engaged in defendant’s interstate business at the time of his injuries, and the subpoena calls for papers bearing on that question. The objection is technical, for defendant well knows what documents it has in its possession relating to the object of the testimony on the question at issue under the commission, which limits the taking of the testimony in the very words of the order objected to.

The rule to show cause will be discharged, with costs.