Opinion
November 12, 1909.
Macdonald De Witt of counsel [ Clarence J. Shearn, attorney], for the appellant.
Sidney Rossman, for the respondent.
Plaintiff sues for $15,000 damages for an alleged libel alleged to have been printed of and concerning him in a newspaper published by the defendant. Defendant obtained an order for the examination of plaintiff before trial upon sufficient papers, which order was subsequently vacated upon a proceeding brought for that purpose and from the order entered thereon this appeal is taken.
The article complained of is as follows: "Two held as highwaymen. William Niehoff, who gave his address as No. 318 East Ninety-fourth street, and Joseph Jackson, who said he lived at No. 258 East One Hundred and Forty-sixth street, were held in $500 bail each in Yorkville Court yesterday, charged with attacking two couples at Seventh street and Avenue A."
The respondent urges that the examination ought not to be had because the charge being that he had committed a crime such examination might result in compelling him to give evidence against himself. This is no reason for denying the order for examination before trial, or for vacating it when granted. A witness may not be compelled to give evidence against himself which may tend to incriminate him. This, however, is a personal right which must be claimed at the time that the questions are put.
It is further claimed that as matter pleaded in mitigation must have been known to the publisher of the libel at the time of the publication thereof, and that as the answer alleges that the facts pleaded in mitigation were known to the defendant prior to the publication thereof, no examination is necessary. Said facts must be proved, however, upon the trial, and this court has held many times that if facts are material and necessary a party is entitled to prove them by his adversary if he so desires even though other witnesses are available.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the order granting the examination before trial reinstated, with ten dollars costs, the date of said examination to be fixed upon settlement of the order herein.
INGRAHAM, LAUGHLIN, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and order reinstated, as stated in opinion. Settle order on notice.