Wolfe v. Goulard

15 Abb. Pr. 336

• Court: New York Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

Leonard, J.

The defendant must answer, and exhibit his books relating to all sales which took place three years or more before the inquiry is made.

The Statute of Limitations will protect him fully from prosecution for any offence connected with the subject in controversy which transpired three years ago. (People a. Mather, 4 Wend., 229.)

The exhibition of the defendant’s books might lead to his conviction, under the statute of 1850 (ch. 123), where the sales were made within three years.

If the defendant were asked what profit he made on the article sold by him under the Voldner label, referred to in the pleadings, for any specific year or other period, I am unable to see that his answer would in any way subject him to a criminal prosecution.

The defendant avowed the use of the label, which has been a’djudged to be an imitation, in his sales of gin in bottles, by his answer, and at every previous step in the cause. His present claim is not very consistent. He has, it seems, the right to stop his disclosures when he will, and claim his privilege, when it is made in good faith, and under just grounds of apprehension.

His books of account may be a stronger statement than his .verbal admission, and may subject the defendant to greater danger of a criminal prosecution; so also as to his written statements.

There are no questions appearing in the referee’s report, which are confined to a period prior to the last three years, or to the profits made on the sales.

The defendant refused to produce his books and papers, and also a'written statement of sales, and refused to answer an inquiry as to the quantity sold under the label from May, 1856, to December 17, 1860; also as to the date of the first sale. I am unable to say that an answer to either of these general questions may not implicate the defendant in a criminal charge. I cannot, therefore, overrule the defendant’s claim of privilege.

The motion for an attachment is denied, without costs, with leave to the plaintiff to proceed with his reference. This denial of the motion to be without prejudice to another motion, in case the defendant shall refuse to answer or account to the extent indicated.