Schuster v. City of New York

• Decision Date: 18 September 1959
• Citation: 191 N.Y.S.2d 884,20 Misc.2d 516
• Parties: , 20 Misc.2d 519 Max SCHUSTER, as Administrator of the goods, chattels and credits of Arnold L. Schuster, Deceased, v. CITY OF NEW YORK.
• Court: New York Supreme Court

Page 884

191 N.Y.S.2d 884

20 Misc.2d 516, 20 Misc.2d 519

Max SCHUSTER, as Administrator of the goods, chattels and credits of Arnold L. Schuster, Deceased, v. CITY OF NEW YORK.

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

Sept. 18, 1959.

Harry H. Lipsig, New York City, for plaintiff. Edward H. Schiff, New York City, of counsel.

Charles H. Tenney, Corp. Counsel, New York City, for defendant. William J. Ferrall, Brooklyn, of counsel.

BENJAMIN BRENNER, Justice.

Motion by plaintiff for an order directing examination of defendant before trial by various members of the Police Department of the City of New York.

The action is in engligence. There are four causes of action for wrongful death and for conscious pain and suffering, contained in the complaint, the sufficiency of which has been sustained by a divided court in the Court of Appeals (5 N.Y.2d 75, 180 N.Y.S.2d 265). In general, the purport of the complaint is that the City's Police Department failed to furnish protection to the decedent and falsely represented the absence of danger to him after he had furnished the defendant with information leading to the arrest of one Sutton.

Plaintiff not only seeks examination of various designated members and officers of the Police Department, but also, without specifically naming them, seeks to examine any and all members of the Department who had anything to do with the investigation into the death of plaintiff's intestate and the efforts made to apprehend his assailant. Plaintiff also seeks to discover and make copies of all records of the Police Department in connection with such death and the efforts made to apprehend the assailant. Defendant opposes the motion on the ground that the information given to the Police Department is of a confidential nature and privileged.

In support of the application plaintiff cites from the prevailing opinion and a concurring opinion in the Court of Appeals which sustained this complaint, and also cites Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. The decision of the Court of Appeals, while sustaining the complaint, did not enlarge or alter the practice or requirements with respect to an examination before trial. The Jencks case, supra, dealt with a criminal prosecution and, in addition, concerned the use of reports of witnesses for the purpose of impeaching such witnesses' testimony and did not touch upon the use of such reports in connection with an examination before trial. Indeed, the holding in that case was in keeping with decisional law which recognizes the right to refuse to produce records, etc., of a privileged and confidential nature, in civil cases, where the protection of vital national interest might militate against their public disclosure. (Langert v. Tenney, 5 A.D.2d 586, 589, 173 N.Y.S.2d 665, 667, appeal to the Court of Appeals dismissed 5 N.Y.2d 875, 182 N.Y.S.2d 25; Matter of Egan, 205 N.Y. 147, 98 N.E. 467, 41 L.R.A., N.S., 280; People v. Keating, 286 App.Div. 150, 152, 141 N.Y.S.2d 562, 564.

As early as 1872 in Worthington v. Scribner, 109 Mass. 487, the court outlined the duties of citizens relative to information required to be furnished to the government and the confidential nature of such information. Justice Gray there stated:

'It is the duty of every citizen to communicate to his government any information which he has of the commission of an offence against its laws. To encourage him in performing this duty without fear of consequences, the law holds such information to be among the secrets of state, and leaves the question how far and under what circumstances the names of the informers and the channel of communication shall be suffered to be known, to the absolute discretion of the government, to be exercised according to its views of what the interests of the public require. Courts of Justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government. The evidence is...