James v. Powell
| Decision Date | 04 October 1966 |
| Citation | 51 Misc.2d 705,273 N.Y.S.2d 730 |
| Parties | Esther JAMES, Plaintiff, v. Adam Clayton POWELL, Jr., Defendant. |
| Court | New York Supreme Court |
Raymond Rubin, New York City, for plaintiff.
George Donald Covington, New York City, for third party.
Pursuant to a subpoena issued by the attorney for a judgment creditor of Congressman Adam Clayton Powell, one Odell Clark has appeared for examination as to his financial relations with Powell. The purpose of the examination is to aid in the discovery of assets of the judgment debtor. Clark's attorney has objected to the presence at the examination of newsmen and others, claiming that he is only a 'third-party witness' and that the proceeding is not one which is required to be open to the general public.
The only statute applicable to civil actions or proceedings is section 4 of the Judiciary Law, which provides that '(t)he sittings of every court within this state shall be public, and every citizen may freely attend the same', subject to the right of the court in certain specified types of cases to exclude persons not directly interested. The right conferred by this section, i.e., the right that sittings of the court be public, may be invoked only by the accused in a criminal prosecution or by either party in a civil case, but not by members of the general public, including the press (Matter of United Press Associations v. Valente, 308 N.Y. 71, 80, 123 N.E.2d 777, 780). The attorney for the judgment creditor herein seeks to invoke the right granted by section 4, supra.
The question presented is whether said section applies to the present examination.
Under the new Civil Practice Law and Rules, an attorney for a judgment creditor may issue a subpoena, without obtaining a court order, for the attendance of the judgment debtor or any other person to testify in aid of the enforcement of the judgment (CPLR 5224; see, also, CPLR 2302). CPLR 5224 (subd. c) provides that the examination may be conducted 'before any person authorized by subdivision (a) of rule 3113' and 'at a place specified in rule 3110'. Subdivision (a) par. 1 of Rule 3113 authorizes the examination to be held, if within the state, before 'a person authorized by the laws of the state to administer oaths' (e.g., a notary) and Rule 3110, in the case of a resident of this state, requires the examination to take place within the county of the witness' residence, or in the county where he is regularly employed or has an office for the transaction of business. Only if the 'party to be examined is a public corporation' is there a requirement that the examination shall be in court. Rule 5224(d) provides for the examination and cross-examination of the witness, the transcription of the testimony if requested, and the noting of objections by the officer before whom the deposition is taken.
Thus the entire proceeding, from the issuance of the subpoena to the signing of the deposition may be had outside of the courthouse and without any supervision by the court. The only references to the court contained in Rule 5224 are a statement that the deposition shall proceed 'subject to the right of a person to apply for a protective order' and a provision that 'Unless the court orders otherwise', a person other than the judgment debtor may produce a sworn transcript of original books of account in place of the original books.
Rule 5240, dealing with applications for a 'protective order' authorizes the court to make an order 'denying, limiting, conditioning,...
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...devices of CPLR 5223 and CPLR 5224. Gorea v. Pinsky, 50 A.D.2d 713, 374 N.Y.S.2d 879 (4th Dep't 1975); James v. Powell, 51 Misc.2d 705, 273 N.Y.S.2d 730 (Sup.Ct., N.Y.Co.1966); Kaplan v. Supak & Sons Mfg. Co., 46 Misc.2d 574, 260 N.Y.S.2d 374 (Civ.Ct., N.Y.Co.1965). The purpose of CPLR 5240......
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Scollo v. Good Samaritan Hosp.
...know.' However, that right is not being subverted, but is merely being delayed until the trial begins" (see also, James v. Powell, 51 Misc.2d 705, 706-707, 273 N.Y.S.2d 730; Cavuoto v. Smith, 108 Misc.2d 221, 222-223, 437 N.Y.S.2d The continued vitality of this court's reasoning and holding......
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Westchester Rockland Newspapers, Inc. v. Marbach
...without being invited, in the private offices of the attorneys where so many of the examinations are held (see James v. Powell, 51 Misc.2d 705, 706, 273 N.Y.S.2d 730, 732). It is clear, that where, as here, broad discovery has been authorized, issues irrelevant to the case and inadmissible ......
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ITT Commercial Finance Corp. v. Bailey
...on pre-CPA and pre-CPLR practice codes and cases which are no longer applicable. In a more recent case, James v. Powell, 51 Misc.2d 705, 273 N.Y.S.2d 730 (Sup.Ct., N.Y. Co.1966), the court sustained the objection of a third party witness to the presence of newsmen and others at an examinati......