Berner v. Schlesinger

• Decision Date: 10 October 1957
• Citation: 178 N.Y.S.2d 135,11 Misc.2d 1024
• Parties: Irwin M. BERNER, as Trustee in Bankruptcy of J. Mackey & Son, Inc., Bankrupt, Plaintiff, v. Sol O. SCHLESINGER, Doing Business as Ideal Uniform Cap Co., Defendant.
• Court: New York Supreme Court

Page 135

178 N.Y.S.2d 135

11 Misc.2d 1024

Irwin M. BERNER, as Trustee in Bankruptcy of J. Mackey &amp Son, Inc., Bankrupt, Plaintiff, v. Sol O. SCHLESINGER, Doing Business as Ideal Uniform Cap Co. Defendant.

Supreme Court, Special and Trial Term, New York County.

Oct. 10, 1957.

Charles H. Cohen, New York City, for plaintiff.

Benjamin H. Wicksel, New York City, for defendant.

FELIX C. BENVENGA, Justice.

This is an action to recover the sum of $27,745.56, based upon alleged transfers of moneys in the form of checks issued by a bankrupt to defendant. The complaint pleads, in the alternative, causes of action based upon the theory of (1) moneys loaned, and (2) fraudulent conveyances. The defense is that the checks were given in payment for returned merchandise. This claim is based mainly on defendant's own testimony on direct examination. On cross-examination, defendant refused to answer relevant questions and to produce relevant books and papers, invoking the privilege against self incrimination. The problem is whether defendant should be directed to answer and produce his relevant books and papers. In determining the issue, it is to be noted that the defendant voluntarily took the stand as a witness in his own behalf, and that the questions asked and the books and papers in question relate to the sole issue of fact involved.

It is not disputed that the privilege against self incrimination may be invoked in any action or proceeding, civil or criminal, and that the privilege protects a party against any form of testimonial compulsion, including the production of books and papers. The specific issue is whether a party to a civil action who voluntarily takes the stand may, on cross-examination, invoke the privilege against self incrimination, or whether, by voluntarily taking the stand, he waives that privilege.

There can be no doubt that a party who voluntarily takes the witness stand in his own behalf waives the privilege against compulsory self incrimination (People v. Johnston, 228 N.Y. 332, 340, 127 N.E. 186, 188; People v. Connolly, 253 N.Y. 330, 341, 171 N.E. 393, 397). The only conflict in the authorities is whether the waiver is limited to matters relevant to the issue or whether it extends also to collateral matters affecting credibility. In the Johnston case (supra), the court, apparently adopting the views of Professor Wigmore (8 Wigmore on Evidence [3d ed.], § 2276), stated that the waiver 'probably' extends only to matters that are relevant to the issue, and not collateral matters affecting merely credibility. I shall assume that to be the rule, especially since the cross-examination related to relevant matters and not to collateral issues.

It is true that the rule has been applied more frequently in criminal cases. Nevertheless, the principles underlying the privilege are equally applicable in civil actions or proceedings (Brown v. United States, 6 Cir., 234 F.2d 140, 145-146; Matter of Grae, 282 N.Y. 428, 433, 26 N.E.2d 963, 966, 127 A.L.R. 1276; Siegel v. Crawford, 266 App.Div. 878, 42 N.Y.S.2d 837, affirmed 292 N.Y. 651, 55 N.E.2d 516; 8 Wigmore on Evidence, § 2276, pp. 452-453; Richardson on Evidence [8th ed.], § 535; 70 C. J., Witnesses, § 912, p. 757).

The...