Opinion
May 29, 1908.
James K. Symmers, for the appellant.
C.F. Goddard, for the respondent.
Present — INGRAHAM, McLAUGHLIN, CLARKE, HOUGHTON and SCOTT, JJ.
The plaintiff, for the purpose of framing his complaint, seeks to obtain a discovery of an instrument which it is alleged is a libel. The effect of granting this application would compel the defendant to furnish evidence which might be used against him in a criminal prosecution. He should not be compelled to furnish such information where a discovery is applied for, as the opposition to the motion is the only opportunity that the party has to object to being compelled to furnish such evidence, and he is entitled then to take the objection. Where a party is required to be examined he can take the objection when the questions are asked; and in such a case the party is required to claim his right to refuse to answer when the deposition is taken, but the rule settled in such cases does not apply when there is no other opportunity to take the objection than in opposing the application, as in the case of a discovery.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied.
Order reversed, with ten dollars costs and disbursements, and motion denied.