Simon v. American Tobacco Co.

192 F. 662, 1911 U.S. App. LEXIS 5502

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 8, 1911
• Status: Published

Opinions

WARD, Circuit Judge.

This is an action at law under section 7 of the Sherman anti-trust law (Act July 2, 1890, c. 647, 26 Stat. 210 [U. S. Comp. St. 1901, P- 3202]) to recover treble damages against two domestic corporations, defendants. The complaint -is .verified, and, the defendants having served unverified answers, the plaintiff returned them on the ground that they were not verified by an officer, as required by section 525, subd. 1, of the Code of Civil Procedure of the state of New York. The defendants now move that the plaintiff be compelled to accept the answers. .■ :. ■

Section 523 of the Code of Civil' Procedure provides that the verification may he omitted “where the party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading.” In an action in the federal courts the immunity which deprives a witness of the privilege .of not incriminating himself must be given by the federal law. Jack v. Kansas, 199 U. S. 372, 26 Sup. Ct. 73. 50 L. Ed. 234.

[1] Congress in the act of June 30, 1906, has provided that: • ¡

“Immunity shall extend only to a natural person who in obedience to" a subpoena gives testimony under oath or . produces evidence, documentary or otherwise, under oath.” U. S. Oomp. Sí. Supp. 1909, p. 1108.

This does not seem to apply to a person verifying a pleading (U. S. v. Sanitary Mfg. Co. [D. C.] 187 Fed. 229), so that neither a corporation nor an individual has any immunity if it doe.s so.

[2] The law of New York requiring the answer of a domestic corporation to be verified by one of its officers must be followed .in the federal courts in actions at law. St. Louis Railway Co. v. Knight, 122 U. S. 79, 96, 7 Sup. Ct. 1132, 30 L. Ed. 1077. Doubtless an officer of a corporation may decline to verify the company’s answer in an action at law in this court on the ground that his doing so would tend to incriminate him. But the fact that one or all of the officer's of the company would be incriminated if they verified the. answer and are given no immunity will not relieve it of the requirement that its answer must be verified. It must select an officer tó dó so who will not be incriminated, and if there is no such officer must provide one.

The practice does prevail in the state courts of New York to serve unverified answers of corporations in libel cases, though the complaint is verified. There are but two decisions on the subject, and they are at Special Term, one in 1888, Goff v. Star Printing Co., 21 Abb. N. C. 211, and Batterman v. Journal Co., 28 Misc. Rep. 375, 59 N. Y. Supp. 965, in 1899. This practice enables the corporation to deny as matter of pleading, and so to compel the plaintiff to prove, what it might have to admit if its answer were verified.

[8] But the Supreme Court of the United States, in Hale v. Henkel, 201 U. S. 43, 70, 74, 26 Sup. Ct. 370, 50 L. Ed. 652, and Wilson v. United States, 221 U. S. 361, 382-384, 31 Sup. Ct. 538, 55 L. Ed. 771, has held that the privilege against self-incrimination is personal to a witness and cannot be availed of by a corporation so as to withhold its books, correspondence, and accounts or to close the mouths of its servants and agents as witnesses. Obviously, if corporations could do this, they would be enabled entirely to defeat investigations under the interstate commercé act and the Sherman anti-trust law.

The motion is denied.