
    Matter of the Application of L. C. A. K. Martens for the Cancellation of the Subpœna Issued by the Joint Legislative Committee of the State of New York.
    (Supreme Court, New York Special Term,
    December, 1919.)
    Subpoena — duces tecum — when motion to cancel denied — Code Civ. Pro. §§ 854, 867.
    Where a subpoena duces tecum issued by a joint legislative committee under section 854 of the Code of Civil Procedure shows that the purpose of the examination of the person subpoenaed was strictly in accordance with the scope of the inquiry which said committee was empowered to conduct, a motion under section 867 of said Code to cancel the subpoena will be denied.
    Application for an order canceling a subpoena duces tecum.
    
    Charles Recht (Dudley Field Malone, of counsel), for petitioner.
    Chas. D. Newton, attorney-general (Samuel A. Berger, of counsel), for state.
   Greenbaum, J.

The applicant above mentioned moves on his own affidavit for an order to cancel a subpoena duces tecum issued by a joint legislative committee and heretofore served upon him and to restrain and enjoin that committee “ from issuing any other or further subpoena, order or direction requiring the said L. C. A. K. Martens to appear before that committee or the Attorney-General of the State of New York, or any other person or body, and to produce any books, papers, documents and correspondence with the Government of the Russian Socialistic Federal Soviet Republic, or to be examined concerning the same and for such further and other relief as the court may deem proper.” The moving papers contain a copy of a resolution adopted by the legislature of the state of New York providing for the appointment of a joint committee of the senate and assembly to investigate the scope, tendencies and ramifications of seditious activities in the community, designed to accomplish the overthrow of the government of this state, and to report the result of its investigations to the legislature, to the end that it may enact ‘£ such legislation as may be necessary to protect the government of the state.” The resolution empowers the committee inter alla “ to compel the attendance of witnesses and the production of books and papers * * * and shall have power to sit anywhere within the state, and shall otherwise have all the powers of a legislative committee, as provided in the Legislative Law, including the adoption of rules for the conduct of these proceedings.” The motion papers are also accompanied with a copy of the subpeena duces tecum served upon the applicant, in which it is expressly stated that the applicant was. called as a witness ‘ ‘ to testify and give evidence in a certain investigation now pending of seditious activities within the State of New York.” The respondent, the legislative committee, through its counsel, challenges the right of the applicant to apply to this court in a summary manner by affidavit either to set aside the subpeena or to grant the injunction as asked for. The attention of the court has not been called by the applicant to any authority in the Code of Civil Procedure or elsewhere which would entitle him to the relief sought by means of a summary motion upon his affidavit. It does not appear that there is any action pending in this court by the applicant against the committee or that this proceeding is made pursuant to any provision of the Code of Civil Procedure. The resolution expressly empowers the legislative committee to issue subpoenas. Section 854 of the Code also authorizes the issuance of a subpoena under the hand of the chairman of the committee, which appears to have been done in the matter under review. The subpoena by its terms shows that the purpose of the examination of the applicant was strictly in accordance with the scope of the inquiry which the committee was empowered to conduct. The counsel for the applicant justifies the motion by reason of the provisions of section 867 of the Code of Civil Procedure, and particularly that portion of it which provides as follows: “ At any time after service of such a subpoena or order, the witness may obtain, upon such a notice as the judge, referee or other officer prescribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpoena or the order for production, upon such terms as justice requires touching the inspection of the book or any portion thereof, or taking a copy thereof or extracts therefrom or otherwise. ’ ’ A study of that section clearly indicates that it refers only to a trial or hearing pending in a court, in which case an order may be made by the judge or by a referee duly appointed in the cause, relieving the witness from the obligations imposed upon him by the subpoena, or to a special proceeding pending out of court before an officer, in which case such an order may be made by the officer or referee. Moreover, it will be observed that that section refers only too“ book of account ” and to no other papers. The motion must be denied.

Motion denied.  