Funk v. Tribune Ass'n

McAdam, Ch. J. While it is true that the court will not compel a defendant in an action for libel or slander to furnish evidence in answer to a bill for discovery, to maintain the action and subject him to punitive damages in the nature of a penalty (5 Barb. 297; 9 Paige, 580; 2 Abb. N. C. 158; 14 Hun, 122), the rule does not prevent the defendant compelling a discovery from a plaintiff of the truth of the alleged libel, where such discovery will not subject him to a criminal prosecution, or to a penalty or forfeiture, or render him infamous (9 Paige, 580; 26 Hun, 166). The application to vacate the order for examination will therefore be denied, and the plaintiff will be required to submit to the required examination; but no question will be permitted, the answer to which may in any way tend to subject her to a criminal prosecution or penalty, or to render her infamous, nor will the witness be required to plead her privilege as an excuse for not answering „ such questions, such a requirement being contrary to the spirit and intent of the rule regulating such examinations (see 26 Hun, 169). So limited, the examination may be had on January 9, 1884, at 10 a. m., and the defendant to have three days within which to answer after the completion of such examination. No appeal was taken.