McCreery v. Ghormley

6 A.D. 170, 39 N.Y.S. 1036

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Per Curiam :

The objection that the proposed discovery compels the defendants to furnish evidence against themselves tending to establish the commission of a crime is completely answered by the fact that the Statute of Limitations has barred any prosecution for the criminal offense. (People v. Mather, 4 Wend. 229; Close v. Olney, 1 Den. 319. See cases cited in opinion in Brown v. Walker, 161 U. S. 591, at page 598.)

In answer to the application were read the affidavits of the several defendants that neither of them had in his possession or under his control the books, papers and documents of which an inspection was sought. This is the only allegation in the affidavits upon the subject. This assertion was not sufficient to defeat the application. The several defendants did not deny the existence of such books and papers, nor did they account for the fact that such books and papers were not in their possession or control. If the books and papers once existed, it was incumbent upon the defendants to satisfy the court that either they had been lost or destroyed, or how and in what manner the defendants had lost control or possession of them. (Perrow v. Lindsay, 52 Hun, 115.)

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred, except Pratt, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.