
    William Niehoff, Respondent, v. Star Company, Appellant.
    First Department,
    November 12, 1909.
    Deposition — examination before trial — witness — self-incriminating evidence—examination of adversary.
    An examination before trial of the plaintiff in an action for libel should not be denied upon the ground that it may compel him to give incriminating evidence against himself. His privilege must be asserted when the questions are put. A party is entitled to prove material and necessary, facts by his adversary if he so desires, even though he has other witnesses available; and, hence, an examination of the plaintiff before trial should not be denied merely because the defendant has alleged the matters as to which the examination is sought.
    Appeal by the defendant, the Star Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 13tli day of August, 1909, vacating an order for the examination of plaintiff before trial.
    
      Macdonald DeWitt of counsel [Clarence J. Shearn, attorney], for the appellant.
    
      Sidney Rossman, for the respondent.
   Clarke, J.:

Plaintiff sues for $15,000 damages for an alleged libel alleged to have been printed'of and concerning him in a newspaper published by the defendant. Defendant obtained an order for the examination of plaintiff before trial upon sufficient papers, which order was subsequently vacated upon a proceeding brought for that.purpose and from the order entered thereon this appeal is taken.

The article complained of is as follows : “ Two held as highwaymen. William Eiehoff, who gave his address as Ho. 318 East Hinety-fourth street, and Joseph Jackson, who said he lived at Eo. 258 East One Hundred and Forty-sixth street, were held in $500 bail each in Torkville Court yesterday, charged with attacking two couples at Seventh street and Avenue A.”

The respondent urges that the examination ought not to be had because the charge being that he had committed a crime such examination might result in compelling him to give evidence against himself. This is no reason for denying the order for examination before trial, or for vacating it when granted. A witness may not be compelled to give evidence against himself which may tend to incriminate him. This, however, is a personal right which must be claimed at the time that the questions are put.

It is further claimed that as matter pleaded in mitigation must have been known to the publisher of the libel at the time of the publication thereof, and that as. the answer alleges that the facts pleaded in mitigation were known to the defendant prior to the publication thereof, no examination is necessary. Said facts must be proved, however, upon the trial, and this court has held many times that if facts are material and necessary a party is entitled to prove them by his adversary if he so desires even though other witnesses are available.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the order granting the examination before trial reinstated, with ten dollars costs, the date of said examination to be fixed upon settlement of the order herein.

Ingraham, Laughlin, Houghton and Soott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and order reinstated, as stated in opinion. Settle order on notice.  