Taylor v. Wood

2 Edw. Ch. 94, 1833 N.Y. LEXIS 175, 1833 N.Y. Misc. LEXIS 54

• Court: New York Court of Chancery
• Decided: July 8, 1833
• Status: Published

Opinion

This was a question of practice. A witness, who was giving his testimony before an examiner, was advised by counsel that he need not answer a particular question which was put. The relevancy of it was left to the court; and the Vice-Chancellor, in the course of his opinion, made the following remarks:

The counsel of the parties have ho right to interrupt the examination, by advising a witness that he is not bound to answer the question. If such question be deemed improper or irrelevant, the counsel should state his objection to the examiner ; and not undertake, in the first instance, to advise the witness. The examiner will dispose of the objection in one of the modes pointed out by the 85. Rule; and should the witness be required to answer the question under either course which the examiner has power to adopt and he (the witness) should think proper to object on his own account or for reasons which concern himself, his objection should be made by way of demurrer to the question. In this form, it can come before the court in order to be decided; and it then becomes a matter upon an issue between-the witness and the party examining him.

If such a formal demurrer be not put in and the witness should, nevertheless, refuse to answer, the matter can be brought before the court upon a motion for an order to compel him to answer on pain of contempt.

When a question is put which would require an answer that might subject the witness to a penalty or forfeiture or tend to criminate or render him infamous, I think it is the 7 duty of the examiner to inform the witness of his legal rights; and to say to him, that he is not bound to answer such ques- £> tions.

I see no objection to a witness asking advice of the opposite counsel or of any other counsel to whom he may think proper to apply, whenever he desires to demur or object.