77 A. 996 (N.H. 1910), Boston & Maine Railroad v. State

Citation:77 A. 996, 75 N.H. 513
Opinion Judge:PARSONS
Party Name:Boston & Maine Railroad v. State
Attorney:Branch & Branch (Oliver E. Branch orally), for the plaintiffs. Edwin G. Eastman, attorney-general, for the state. Patrick H. Sullivan, orally, for the witness Varick. Burnham, Brown, Jones & Warren (Robert L. Manning orally), for the witness Burpee.
Case Date:September 29, 1910
Court:Supreme Court of New Hampshire

Page 996

77 A. 996 (N.H. 1910)

75 N.H. 513

Boston & Maine Railroad



Supreme Court of New Hampshire

September 29, 1910

The motions are granted.

All concurred.


Motions, by the plaintiffs, that two witnesses, duly summoned under a caption for the taking of depositions to be used on the trial of the plaintiffs' petition for abatement of taxes, be directed to answer certain inquiries put to them in the course of their examination and to produce certain documents in obedience to a subpoena duces tecum served upon each.

October 26, 1909, the plaintiffs filed in the supreme court a petition for abatement of the taxes assessed against them by the state board of equalization for the year 1909, and three referees were appointed to hear the parties and report the facts. The petition alleges, in substance, that the board of equalization appraised the road, rolling stock, and equipment of the lines comprising the Boston & Maine system in New Hampshire at a sum in excess of the true value thereof, and also fixed the valuation of such property for purposes of taxation at a greater percentage of its true value than that placed upon all other taxable property in the state. For the purpose of showing whether the valuation of railroad property was equal and proportional to the appraisal of certain property by the assessors of the city of Manchester, the plaintiffs duly summoned Thomas R. Varick, treasurer and manager of the John B. Varick Company, and William B. Burpee, treasurer of the Elliott Manufacturing Company, to testify before a magistrate authorized to take depositions. The subpoena served upon Varick directed him to produce the policies of insurance upon the property of the Varick Company; that served upon Burpee required the production of "all the books, papers, inventories or accounts in his possession or under his control, tending to show the stock in trade of the Elliott Manufacturing Company and the insurance thereon, for the years 1908 and 1909."

August 18, 1910, Varick appeared in response to the subpoena. He testified that he could not give any estimate of the amount of insurance carried upon the stock in trade of the Varick Company, and that he did not bring with him the policies mentioned in the subpoena because he considered that they were "our private business," and that it would be "an injury to our business to produce them." He declined to answer other inquiries as to the amount of insurance on the ground that the information sought to be elicited was irrelevant, and refused to furnish a schedule of the insurance without naming the companies which issued the policies. The witness also testified that the stock in trade of the Varick Company for the year ending April 1, 1909, was fairly worth from $ 140,000 to $ 150,000 and could be replaced for less than $ 250,000, but for how much less he was unable to state. He then testified that in September, 1909, he and his brother purchased the interests of two other owners in the Varick Company, but he declined to state the price paid therefor, on the ground that the transaction was his private business.

August 31, 1910, Burpee testified that he was unable to state the value of the average stock in trade of the Elliott Company for the year ending April 1, 1909, and had made no examination for the purpose of obtaining the information; that he supposed the accounts of stock were preserved, although he had made no attempt to find them and had not searched the books to learn what they would show; that he had not brought with him the books and documents enumerated in the subpoena and should decline to make any disclosure as to the stock accounts and insurance policies of the Elliott Company until he had consulted the directors and counsel.

September 6, 1910, counsel for the plaintiffs moved in the supreme court that each witness be ordered to answer the questions propounded to him and to produce the documents hereinbefore described.

Branch & Branch (Oliver E. Branch orally), for the plaintiffs.

Edwin G. Eastman, attorney-general, for the state.

Patrick H. Sullivan, orally, for the witness Varick.

Burnham, Brown, Jones & Warren (Robert L. Manning orally), for the witness Burpee.



[75 N.H. 515] The plaintiffs' petition for abatement is a civil cause in which they have the right to take the deposition of any witness for use at the trial. P. S., c. 225, s. 1; Rancour's Petition, 66 N.H. 172, 175; Hayward v. Barron, 38 N.H. 366. Witnesses duly summoned having refused to disclose orally and by documentary proof facts claimed by both parties to be material to the issue, the parties are entitled to some procedure by which the question of law involved in the refusal to answer can be authoritatively settled with reasonable...

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