Matter of Mohawk Overall Co.

Willard Bartlett, Oh. J. We think that this order is appealable. The proceeding was instituted by petition for the purpose of taking a deposition within this state for use without this state under article III of title 3 of chapter 9 of the Code of Civil Procedure (sections 914 to 919 inclusive). It is expressly denominated a special proceeding in the Code of Civil Procedure itself (§ 914). The order denying the motion to vacate the subpoena operated as a final adjudication to the effect that the petitioner was entitled to take the desired deposition. This disposed of the matter so far as the action of the New York court was concerned. Hence the order was a final order in a special proceeding from which the party aggrieved was entitled to appeal as a matter of right. The case is readily distinguishable from Matter of Morris & Cummings Dredging Co. (209 N. Y. 588) where the order sought to be reviewed denied an application to vacate certain subpoenas duces tecum issued in an accounting before a referee in the Surrogate’s Court. There the appeal was dismissed on the ground that the order was merely incidental to a trial before a referee in an unfinished proceeding pending in a court of this state and was, therefore, not a final order; while here, as has been pointed out, an order upholding a subpoena to obtain evidence to use in another state, like an order vacating it, finally disposes of the special proceeding to procure such evidence so far as the courts of this state are concerned in the matter. The litigation in which the testimony of the appellants is desired is pending in the Windham County Court of Chancery in Vermont. In that litigation a master in chancery has been directed by the chancellor to take evidence for the purpose of ascertaining the damages sus *477 tained by the complainants; and to this end the Vermont court has issued a commission to a commissioner in Washington county in this state to take the deposition of the appellants. The complainant in the Vermont suit thereupon presented a petition to a justice of the Supreme Court of this state in the fourth district, praying the issuance of a subpoena in accordance with the terms of the commission, under section 91.5 of the Code of Civil Procedure. The Supreme Court justice thereupon issued a subpoena requiring the attendance of the appellants as witnesses before the commissioner at Schenectady, and directing them to produce at the hearing all the original books of the Mohawk Overall Company containing charges or accounts for manufactured products of that corporation against the persons named in a list attached to the subpoena for a period of three years; and also all correspondence between the corporation and such persons, in any way relating to the sales of such manufactured products during the same period. The list attached to the subpoena is printed on pages 13 to 87 of the appeal book and names 2,176 persons, firms and corporations doing business in various states of the Union and in Canada. The Mohawk Overall Company is a corporation which, according to the allegation of the complainants in the Vermont equity suit, was organized by the appellants in the present proceeding as the result of a conspiracy to deprive the complainant— a Vermont corporation — of its business. The appellants claim to be aggrieved by the burdensome character of this subpoena. The witnesses named therein are the president, vice-president and secretary and treasurer of the Mohawk Overall Company, all of whom are defendants in the Vermont suit. They say that the subpoena requires the production of every possible kind of paper, book or account which the corporation has or has ever had since it commenced business with 2,176 individuals, firms and corporations, located in upwards of forty-five states, territories and countries, including *478 almost every state in the Union, and England, Canada and Greece. This grievance, however, does not give rise to such a question of law as can he considered by the Court of Appeals. The contention of the appellants in this respect was eminently proper for the consideration of the Supreme Court at Special Term and in the Appellate Division which had power in the exercise of their judicial discretion to modify the subpoena in such respects as fairness to both parties required and permitted. Here, however, in such a case as this we can deal only with questions of law not involving discretion. The first question of this character presented in behalf of the appellants is the proposition that the subpoena duces tecum is a violation of the Fourth Amendment to the Constitution of the United States, namely: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated. ” As to this point it suffices to say that the first ten amendments to the Federal Constitution have repeatedly been held to be “restraints upon the power of Congress and not restraints upon the power of the states.” (See Miller on the Constitution, p. 645.) A similar provision, however, is to be found in the New York Statutory Bill of Rights, which provides that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures ought not to be violated (Civil Rights Law, § 8; Laws of 1909, ch. 14); and the operation of this provision is also invoked by the appellants. In reference to the Fourth Amendment to the Federal Constitution, the Supreme Court of the United States has said: “We think it quite clear that the search and seizure clause of the Fourth Amendment was not intended to interfere with the power of courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence.” (Hale v. Henkel, 201 *479 U. S. 43, 73, and cases there cited.) The same observation applies with equal force to the search and seizure clause of the New York Bill of Rights. There is no ground which would authorize this court to interfere with the order below and it must, therefore, he affirmed, with costs. Werner, Hisoook, Chase, Collin, Hogan and Miller, JJ., concur. Order affirmed.