Masten v. State , 179 N.Y.S.2d 93 ( 1958 )

Alexander Del Giorno, J.

This is an application by the claimants for the issuance by the court of a subpoena duces tecum directed to the Town Clerk, Town of Eamapo, Suffern, New York, requiring the production by the latter at the trial of this action of certain items numbered one through nine, comprising certain minutes of the Town Board, records of meetings of the citizens committee, and resolutions, orders and zoning ordinances. The Town Clerk, by the Town Attorney for the Town of Eamapo, opposes the application.

Item 2, relating to records of meetings held by the citizens committee is denied for the reason that the said committee was not an official town body and that the records of such committee are not part of the records of the Town Clerk.

Items 1, 3, 4, 5, 6, 7, 8 and 9 are denied. While it is true that under extreme conditions the court has the power to issue a subpoena duces tecum directed to a public officer, a department of a municipal corporation or other public officer or department (Bules Civ. Prae., rule 162) the court considers that the records under consideration are public records held in the Town of Eamapo for posterity. Sound public policy dictates that they should not be removed indiscriminately from their places of safekeeping for use upon trials.

The suggestion made by the Town Attorney in his opposing affidavit, to the effect that copies to be made by claimants’ attorneys of all required documents and records will be certified by the clerk for use at the trial upon payment of the proper fee, constitutes a sound approach to the problem involved. (Buies Civ. Prac., rule 162.)

Accordingly, the claimants may procure the required copies of the records indicated and cause them to be certified by the clerk. They will be accepted by the court at the trial at their face value in place of the original records.

The application is denied in toto.