Davies v. Lincoln National Bank , 19 N.Y. St. Rep. 905 ( 1888 )

Andrews, J.

I suppose the examination of Mr. James was ordered under subdivision 7 of section 872 of the Code, which provides that, “if the party sought to be examined is a corporation, the affidavit shall state the names of the officers or directors, or any of them, whose testimony is necessary or material,” etc. The party sought to be examined in this case, and whose books are to be produced, is not Mr. James, but the bank, which is the defendant, and the sole object of the examination is to obtain evidence that the bank has taken usurious interest. The taking such usurious interest, if proved, will subject the bank to a penalty or forfeiture of the entire interest received. Kev. St. IT. S. § 5198. It has been frequently decided that a defendant cannot be examined as a witness for his adversary when his evidence will subject him to a penalty or forfeiture. Phœnix v. Dupuy, 2 Abb. N. C. 146; Manufacturing Co. v. Bridgman, 14 Hun, 122; Kinney v. Roberts, 26 Hun, 166; King v. Leighton, 58 N. Y. 383; Frazier v. Davids, 1 How. Pr. (N. S.) 490; Walker v. Dunlevey, 4 Civil Proc. R. 38. The Code itself (section 837) provides that a witness shall not be required to give an answer which will tend to expose him to a penalty or forfeiture. Of course, a corporation can only be examined through its officers, directors, or agents, and the examination of Mr. James, who is required to produce the books of the bank, is, under said subdivision 7 of section 872 of the Code, an examination of the defendant bank itself; and, as the sole object of such examination is to obtain testimony which will subject the bank to a penalty or forfeiture, I do not think the examination can be had. The motion to vacate order granted, with $10 costs, to abide the event.