Levine v. Bornstein
| Decision Date | 08 July 1959 |
| Parties | , 160 N.E.2d 921 R. H. LEVINE, as Assignee of Atwater Live Poultry Co., Inc., Appellant, v. Thomas BORNSTEIN, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 7 A.D.2d 995, 183 N.Y.S.2d 868.
Action was brought on assigned judgments. The Supreme Court, Special Term, Kings County, Part I, James S. Brown, Jr., J., 13 Misc.2d 161, 174 N.Y.S.2d 574, entered an order striking the complaint and dismissing the action because of the plaintiff's willful disobedience of orders for his examination before trial, and the plaintiff appealed.
The Appellate Division, 7 A.D.2d 995, 183 N.Y.S.2d 868, affirmed the judgment and held that where defendant sought to elicit facts in support of affirmative defense of violation of Sections 274 and 275 of the Penal Law, Consol.Laws, c. 40, relating to buying demands on which to bring an action, and purchase of claims by corporations or collection agencies, and plaintiff refused to answer such questions, on ground that his answers might tend to incriminate him, defendant's motion to dismiss the complaint because of plaintiff's refusal to answer the questions on examination before trial was properly granted. Kleinfeld, J., and Nolan, P. J., dissented.
The plaintiff appealed to the Court of Appeals, contending that the Special Term had no 'inherent' power to grant the order, and that the circumstances in which a pleading may be stricken and final judgment be awarded in the area of pre-trial procedure must be prescribed by the Legislature or the power does not exist at all, and that the order and judgment constituted a denial of constitutional due process of law, and that failure to give testimony on an examination before trial under protection of a constitutional privilege against possible self-incrimination is no warrant for striking the complaint and awarding the judgment out of hand, and that the policy considerations, on which the Special Term claimed 'inherent' power, were unsound and irrelevant.
Raphael H. Weissman, Brooklyn (Richard C. Weissman, New York City, on the brief), for appellant.
Copal Mintz, New York City, for respondent.
Judgment affirmed, with costs.
All concur.
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