Getting v. Simon

Order, entered March 19, 1963, denying motion to quash a paper purporting to he a notice issued pursuant to subdivision 1 of section 73 of the General Business Law, but regarded as a subpoena by movant appellant, and sealing the papers on the application, modified, on the law and in the exercise of discretion, to remove the sealing of the papers but to strike and expunge from the record: the second full paragraph on page 4 of movant’s affidavit of February 25, 1963; the fourth sentence in the third paragraph on page 4 of movant’s said affidavit; the last dependent clause of the last sentence of the first paragraph on page 5 of movant’s said affidavit; the second full paragraph on page 6, continuing on page 7, of movant’s said affidavit; all but the first two sentences of the full paragraph on page 2 of movant’s affidavit of March 11, 1963; and the documents bearing Clerk’s exhibit numbers 5, 7, 9, 10, 11, 12, 13 and 14, in their entirety, and the order is otherwise affirmed, with $20 costs and disbursements to respondent-respondent. The ancillary motion for disqualification is denied, and the return date of the above notice may be fulfilled by appellant’s compliance on May 20, 1963 at the same time and place. The stricken material is not pertinent. It contains unsupported scandalous vituperative matter. It may not stand (Matter of Noonan, 269 App. Div. 702; Ledwith v. Ignatius, 179 Mise. 394, affd. 265 App. Div. 987; 60 C. J. S., Motions and Orders, § 25; 2 C. J. S., Affidavits, § 16, p. 946; 4A C. J. S., Appeal & Error, § 1132). It is evident that movant appellant’s purpose and that of his attorney is to achieve deviously for themselves and for those who might quote them a protected forum for levelling irrelevant charges against others (cf. Penal Law, § 1345; People ex rel. Benshy v. Warden, 258 N. Y. 55; Feldman v. Bernham, 6 A D 2d 498, affd. 7 N Y 2d 772). Concur —Breitel, J. P., Rabin, McNally, Eager and Bastow, JJ.