Levine v. Bornstein

• Decision Date: 25 April 1958
• Citation: 174 N.Y.S.2d 574,13 Misc.2d 161
• Parties: R. H. LEVINE, as Assignee of Atwater Live Poultry Co. Inc. v. Thomas BORNSTEIN.
• Court: New York Supreme Court

Page 574

174 N.Y.S.2d 574

13 Misc.2d 161

R. H. LEVINE, as Assignee of Atwater Live Poultry Co. Inc. v. Thomas BORNSTEIN.

Supreme Court, Special Term, Kings County, Part I.

April 25, 1958.

Fred Goldenberg, Brooklyn, for plaintiff.

Copal Mintz, New York City, for defendant.

JAMES S. BROWN, Jr., Justice.

Two judgments were obtained against the defendant herein on December 3, 1936, and it would appear that these judgments were assigned to the plaintiff on November 30, 1956, four days before their twenty-year life expired; and that the plaintiff promptly commenced this action against the defendant on December 3, 1956 by delivering a copy of the summons and complaint to the Sheriff of the County of New York.

In his answer the defendant alleges as an affirmative defense that the plaintiff has been and still is engaged 'in the business and practice of furnishing attorneys or counsel to render legal services in the collection of judgments and represented and advertised that he, in conjunction with others, owned, conducted and maintained a law and collection office wherein the legal services necessary to effect collection of judgments were rendered, and he solicited the retainer of himself to render, through himself and such attorney or attorneys as he may furnish, the legal services necessary to effect collection of judgments,' and that the plaintiff 'engaged directly or indirectly in the business of collection and adjustment of claims, including judgments, and solicited claims, demands and causes of action, including judgments, with the intent and for the purpose of bringing actions or proceedings thereon, and bought and took assignments of such claims including judgments and solicited claims and demands, and causes of action, with the said intent and for said purpose,' and that such assignments of these judgments were therefore unlawful and illegal.

The defendant obviously has reference to sections 274 and 275 of the Penal Law which make it a misdemeanor for persons under certain circumstances to 'solicit, buy or take' a chose in action 'for the purpose of bringing an action thereon.'

By orders of this Court obtained by the defendant, the plaintiff was directed to submit to examination before trial upon the affirmative defense. Plaintiff submitted to the examination but refused to answer questions which sought to elicit information pertaining to the circumstances surrounding the assignments and the sufficiency and validity thereof. Such refusal was on the ground that such questions sought to elicit information which would have the tendency and objective to incriminate and degrade him. Thus he claimed privilege under the New York Constitution, Article I, section 6, and the Fifth Amendment of the United States Constitution.

The defendant now moves for an order pursuant to sections 299 and 405 of the Civil Practice Act, and also in the exercise of the court's inherent power, striking the complaint and dismissing the action for the plaintiff's deliberate and willful refusal to comply with the orders of this Court. In support of his motion defendant has advanced forceful arguments that no one may sue and at the same time suppress evidence directly material and relevant to his suit by claiming privilege and that if one so sues he must waive such privilege; that the constitutional privilege against self-incrimination should be used only as a shield and not as a sword. On the other hand, plaintiff takes the position that he is constitutionally guaranteed the right to refuse to answer the questions asked, regardless of the surrounding circumstances.

There is no doubt that a witness in any legal proceeding cannot be required to answer questions which will tend to show that he is guilty of a crime. The matters that are privileged include everything which would tend to subject the witness to: (1) a fine or imprisonment; (2) a forfeiture or confiscation of land; or (3) a penalty. C.P.A. § 355; Code Crim.Proc. § 10; Constitution of New York State, Art. 1, § 5; Constitution of the United States, Amendment V. The privilege applies in civil, as well as criminal cases (Chappel v. Chappel, 116 App.Div. 573, 101 N.Y.S. 846; Matter of Siegel v. Crawford, 266 App.Div. 878, 42 N.Y.S.2d 837; Brill v. Dodd, Sup., 36 N.Y.S.2d 975). The constitutional provisions bestowing privilege against self-incrimination have consistently been construed by the courts in a broad and liberal spirit (Quinn v. U.S., 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964; Ullman v. U. S., 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511) and the raising of such privilege is available to a witness in an examination before trial (Bradley v. O'Hare, 2 A.D.2d 436, 156 N.Y.S.2d 533, and cases cited; Southbridge Finishing Co. v. Golding, 208 Misc. 846, 143 N.Y.S.2d 911, affirmed 2 App.Div.2d 882, 157 N.Y.S.2d 898). In Owen v. Fisher, 189 Misc. 69, 66 N.Y.S.2d 856, a negligence action, the defendant claimed the privilege when she was examined before trial. In upholding her right to do so the court said 66 N.Y.S.2d at page 859:

'It is also contended by the plaintiff that if the alleged operator...