Levine v. Bornstein

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: KLEINFELD; NOLAN, P. J., concurs with KLEINFELD
• Citation: Levine v. Bornstein, 7 A.D.2d 995, 183 N.Y.S.2d 868 (N.Y. App. Div. 1959)
• Decision Date: 02 March 1959
• Parties: R. H. LEVINE, as assignee of Atwater Live Poultry Co., Inc., Appellant, v. Thomas BORNSTEIN, Respondent.

Page 868

183 N.Y.S.2d 868

7 A.D.2d 995

R. H. LEVINE, as assignee of Atwater Live Poultry Co., Inc., Appellant, v. Thomas BORNSTEIN, Respondent.

Supreme Court, Appellate Division, Second Department.

March 2, 1959.

Raphael H. Weissman, Brooklyn, for appellant.

Copal Mintz, New York City, for respondent.

Before NOLAN, P. J., and MURPHY, UGHETTA, HALLINAN and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In an action in the Supreme Court, Kings County, to recover on two judgments of the City Court of the City of New York, New York County, docketed in 1936, brought by the assignee of the judgment creditor, the appeal is (1) from an order granting a motion to dismiss the complaint for appellant's refusal to answer questions upon an examination before trial held pursuant to order, and (2) from the judgment entered thereon. The questions, which appellant refused to answer on the ground that his answers might tend to incriminate him, sought to elicit facts in support of an affirmative defense of violation of sections 274 and 275 of the Penal Law.

Order and judgment affirmed, without costs. No opinion.

MURPHY, UGHETTA and HALLINAN, JJ., concur.

KLEINFELD, J., dissents and votes to reverse the order, to deny the motion, and to vacate the judgment, with the following memorandum:

As was held at the Special Term, the privilege was well taken (Bradley v. O'Hare, 2 A.D.2d 436, 156 N.Y.S.2d 533), and there is no statutory authority, in this State, to strike out a pleading for the exercise of the privilege against self incrimination. The learned Special Term erred in holding that the court had inherent power to strike out a pleading for this reason (Levine v. Moskowitz, 206 App.Div. 194, 200 N.Y.S. 597; Roseberg Holding Co. v. Berman, 214 App.Div. 146, 211 N.Y.S. 900; Nowak v. Buffalo...