
    Matter of the Application for the Issuing of Subpoenas to John Bushnell et al.
    (Supreme Court, New York Special Term,
    January, 1897.)
    Depositions — Refusal to testify.
    The courts have no power to compel witnesses, subpoenaed to testify under a commission from another state; to answer questions put b> ■them, but the officer before whom they are required, to appear. has power under sections 920 and 2871 of the Code to punish their refusal to testify as a contempt by fine or imprisonment, or both.
    Motion to compel witnesses to answer questions put to them on a commission from the state of Pennsylvania. „ '
    Lessler & Myers, for motion.
    Evarts, Choate & Beaman (Joseph H. Choate, of counsel), opposed.
   Truax, J.

This is an application to compel John Bushnell and certain other persons, to answer questions put to them as witnesses before a commissioner appointed under a rule or order made by the Court of Common Pleas of Warren county, Pennsylvania, in a case pending in that court. The depositions in this state are taken under sections 914 to 920, inclusive, of the Code of Civil Procedure. Section 915 provides, among other things, that where a commission to take testimony within the state has been issued from the court in which the action is pending, the commission, notice or other paper, authorizing the testimony to be taken, may be presented in behalf of the party desiring to obtain it to a justice of the Supreme Court, with proof by affidavit that the testimony of, the witness is material to the party; the judge must thereupon issue a subpoena to the witness commanding him to appear before the commissioner named in the commission, at a time and place specified in the subpoena, to testify in the action. Section 920 provides the penalties that may be imposed upon a person who fails to appear at the time and place specified in the subpoena or to testify. I am of the opinion that the only power that the courts -of this state have to punish for a failure to testify is that given by this section, and that is, the person so refusing is liable to the penalties which would be incurred in a like case if he was subpoenaed to attend the trial of an action in a Justice’s Court, and for that purpose the officer before whom he is required to appear possesses all the powers of a justice of the peace upon a trial.' Section 28ÍT provides that a justice of the peace may punish for contempt by inflicting a fine not ex- - ceeding $25, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. The legislature was under no obligations, except, perhaps, the obligation of comity, to fix any punishment for a refusal to testify under a commission . from another state; but having fixed a punishment, the only punishment that can be inflicted by the court is the punishment fixed by the legislature. The remark' of Mr. Justice Macomber, In re Whitlock, 51 Hun, 351, that undoubtedly, under section 915 of • the Code of Civil Procedure, a court or judge has power, when it. appears that a witness refuses ,to answer a prpper and material question upon commission, to require him to do so, and in case he fails to answer to punish him for it, means more than that he can he punished as provided by section 920 of the Code of Civil Procedure, it is obiter.

Motion is denied, with $10 costs.

Motion denied.  