Langert, Application of

• Decision Date: 13 May 1958
• Citation: 5 A.D.2d 586,173 N.Y.S.2d 665
• Parties: Application of Matthew J. LANGERT, Petitioner-Respondent, For an Order to take the Deposition of Charles H. Tenney, the Commissioner of Investigation of the City of New York, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 665

173 N.Y.S.2d 665

5 A.D.2d 586

Application of Matthew J. LANGERT, Petitioner-Respondent,

For an Order to take the Deposition of Charles H.

Tenney, the Commissioner of

Investigation of the City of

New York,

Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

May 13, 1958.

As Modified June 3, 1958.

Edward A. Doberman, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief; Peter Campbell Brown, Corp. Counsel, New York City), for appellant.

Edwin E. Roberts, New York City, for petitioner-respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, FRANK, and McNALLY, JJ.

BREITEL, Justice.

The question is whether the Commissioner of Investigation of the City of New York may be compelled, at the private suit of an accused City building inspector, to disclose the name of an informant and the content of the communication made by such informant. The proceeding was brought under sections 295 and 296 of the Civil Practice Act for the purpose of obtaining and then using the information in an action for defamation to be brought against the informant or those who impelled him.

Special Term granted the petition, and the Commissioner appeals.

The order granting the petition should be reversed and the petition dismissed on the ground that the Commissioner has a public interest privilege which prevents disclosure. The essential confusion in the matter is between that of the qualified privilege of the informant (see Pecue v. West, 233 N.Y. 316, 135 N.E. 515) and the privilege based on public interest conferred on some public officers in connection with the performance of their duties where the public interest requires that such confidential communications or the sources, not be divulged (People v. Keating, 286 App.Div. 150, 152-153, 141 N.Y.S.2d 562, 564-565).

Petitioner is an inspector in the Department of Buildings of the City of New York. In 1957, petitioner allegedly found a violation in a certain building. He became involved in an argument with the owner. Thereafter, an accusation was placed against petitioner charging that he had attempted to extort a sum of money in connection with the alleged violation. Petitioner believes the building owner was responsible for the charge. The accusation was investigated by the Commissioner of Investigation, but no findings were made against petitioner. He proposes now to bring an action for defamation against the informant, or those who impelled him, but he presently lacks the information as to who was the informant and what was the nature of the communication.

There are a number of statutory privileges. These are generally absolute, both in the sense of providing immunity in tort and in not being affected by the purpose, motive, or basis with which the confidential communication was made. In addition to the statutory privileges, there is a public interest privilege, covering confidential communications, available to certain public officers in the executive branch in certain contexts. While there is a split of authority whether this privilege is under some circumstances absolute, or whether it is always qualified (see People v. Keating supra), determination of that question is not crucial to this matter. What is clear is that the qualification, if any, of the privilege does not turn upon the private purpose with which the informant made the confidential communication, but on whether the public interest is better served by disclosure or by keeping the seal of confidence. Cf. People v. Walsh, 262 N.Y. 140, 149, 186 N.E. 422, 424; see, also, Vogel v. Gruaz, 110 U.S. 311, 315, 4 S.Ct. 12, 28 L.Ed. 158. The concern here is with the privilege of the public officer, the recipient of the communication, rather than with the privilege of the maker of the communication.

The highly confidential and investigative function performed by the Commissioner of Investigation of the City of New York has been clearly determined by the Court of Appeals (Cherkis v. Impellitteri, 307 N.Y. 132, 120 N.E.2d 530). The very purpose of that office would be defeated if communications made to the Commissioner were subject to revelation at the suit of the affected individual. In this respect the Commissioner's function is closely allied to that of the District Attorney or the police officer (Lewis v. Roux Trucking Corp., 222 App.Div. 204, 226 N.Y.S. 70; People ex rel. Woodill v. Fosdick, 141 App.Div. 450, 452-453, 126 N.Y.S. 252; cf. Nields v. Lea, 274 App.Div. 890, 82 N.Y.S.2d 512). Generally, the...