
    Wilhelmina Meyer, Otherwise Known, as Wilhelmina Mayo, Respondent, v. Virginius St. Julian Mayo, Appellant.
    First Department,
    June 2, 1916.
    Discovery •— examination of defendant before trial — incriminating questions — privilege of witness — section 837, Code Civil Procedure, construed—-breach of promise to marry— questions tending to show bigamy — effect of running of Statute of Limitations — evidence — wealth of defendant — specific property owned.
    The privilege of a witness to refuse to answer questions seemed by section 837 of the Code of Civil Procedure is personal to the witness and may be waived and is waived unless the privilege is claimed.
    Hence, an order for the examination of the defendant before trial in an action for breach of promise to marry, founded upon a charge that the defendant married the plaintiff at the time a former marriage was in full force and effect, so that the second marriage was void, the order should direct thé defendant to answer questions tending to prove his former marriage, or to assert in the record his claim of privilege upon the ground that the questions will tend to incriminate him, with a statement that the referee shall certify the questions and the defendant’s refusal to answer to the court so that the matter may be disposed of in accordance with the facts.
    Such order should not refer to the defendant’s privilege as a “constitutional ” privilege.
    Where the Statute of Limitations has run against a prosecution for the crime which the defendant’s answers may tend to prove, he cannot assert the statutory privilege, if at the same time it appears that no indictment against him has been found. The plaintiff is entitled to show that the statute has in fact run and that no privilege exists.
    Where there is a prima facie presumption that the answers cannot incriminate the defendant because the Statute of Limitations has run, his right to the privilege is a matter for judicial determination.
    In an action to recover damages for breach of promise to marry, the financial condition of the defendant is relevant and may be established, not only by questions tending to show general reputation, but also by questions relating to his ownership of particular items of property, as for example,, patent rights. But the examination as to the defendant’s wealth should be limited to the time intervening between the date of his promise to marry and the commencement of the action.
    Appeal by tibe defendant, Virginins St. Julian Mayo, 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 New York on the 2d day of May, 1916, directing defendant to answer certain questions which he had declined to answer on an examination before trial herein.
    
      James W. Osborne, for the appellant.
    
      Edwin Pi,. Leavitt, for the respondent.
   Page, J.:

The action is to recover damages for a breach of promise to marry. The facts, as alleged in the complaint and the affidavit to procure the order for the examination, are as follows:

On November 20, 1903, defendant promised to marry the plaintiff, and on April. 2, 1904, a marriage ceremony was performed by a minister, and thereafter the parties cohabited as man and wife for eleven years, when on or about March 9, 1915, the' plaintiff discovered that at the time of the promise and the marriage ceremony the defendant had been married; that the wife of the former marriage was living and that the said marriage was in full force and effect. On the examination the defendant was asked: “Did you know a Miss Florence Weeks ? * * * Were you ever married to a Miss Florence Weeks ? * * * Did you ever know a Eeverend Gr. M. Colville? * "x" * Did you ever know a man by the name of L. H. Beach ? * * * Did you ever know a Mrs. M. S. Hard ? "x" "x* * Did you ever live at Evanston, near the City of Chicago, Illinois ? * * * Were you in the City of Scranton, Pennsylvania, in the year 1900 ? ” To each of these questions the witness declined to answer, and refused to assign any reason. The referee certified the questions to the court. Each of these questions may be assumed to tend to prove the former marriage of the defendant, and were, therefore, pertinent to the issue and material. The only justification for a refusal to answer, that was presented by defendant’s counsel, was that the answer would tend to incriminate the defendant.

The refusal to answer such a question is a privilege secured to a witness by section 83Y of the Code of Civil Procedure. It has been repeatedly held that this is a personal privilege that may be waived, and is waived, unless the privilege is claimed. Therefore, the order of the Special Term that the defendant shall be required to answer, the questions, or “ assert on the record that he claims his constitutional privilege on the ground that answering said questions will tend to degrade or incriminate him, in which casé said defendant need not answer said questions, ” sufficiently protects his rights. In fact it goes beyond the requirements, for a witness may be compelled to answer a material and relevant question, although the answer may tend to disgrace him or bring him into disrepute. It is only where the inquiry is as to collateral, immaterial or irrelevant matter that the witness can be excused from answering a question on the ground -that it would have a tendency to degrade him. The provision of the Code of Civil Procedure (§ 837) is applicable, that 1 ‘ a competent witness shall not be excused from answering a relevant question * * *. But this provision does not require a witness to give an answer which will tend to accuse himself of a crime or misdemeanor or to expose him to a penalty or forfeiture.” The constitutional privilege is merely, “ nor shall he be compelled in any criminal case to be a witness against himself.” (N. Y. State Const, art. 1, § 6.) The word “constitutional” is not accurately used and should be eliminated from the order.

The defendant in his verified answer has denied the facts which his counsel claims would tend to incriminate him. If he desired to put the plaintiff to her proof, and still save his privilege, he could have done so by serving an unverified answer. (Code Civ. Proc. § 523.) But assuming, as counsel has, that his denial under oath is false, and that the witness will claim his privilege, it does not necessarily follow that he may not be required to answer the questions. If there was performed a ceremonial marriage between the parties to this action on April 2, 1904, and the defendant then had a wife of a former marriage living, and said marriage is still valid and subsisting, the Statute of Limitations has run against the crime he then committed. That being the case the claim of privilege does not apply. The rule and the reason therefor are clearly stated by Professor Wigmore: “The law is concerned with its own penalties only. Legal criminality consists in liability to the law’s punishment. When that liability is removed, criminality ceases; and with the criminality the privileges * * *. A crime erased by lapse of time . exists no longer. There is, therefore, no criminal fact to be privileged from disclosure. A legal limitation of the time of prosecution is in effect an expurgation of the crime; and after the lapse of the time fixed by law the privilege ceases.” (Wig. Ev. § 2279.) This rule has been recognized by the courts of this State (People v. Mather, 4 Wend. 229, 254; Close v. Olney, 1 Den. 319; Moloney v. Dows, 2 Hilt. 247, 262; Wolfe v. Goulard, 15 Abb. Pr. 336; Henry v. Salina Bank, 1 N. Y. 83), but not in such a manner as to constitute a binding precedent. It has been recognized and enforced in other jurisdictions. (Weldon v. Burch, 12 Ill. 374; Samson v. Boyden, 160 id. 613, 619; Calhoun v. Thompson, 56 Ala. 166; Childs v. Merrill, 66 Vt. 302; Southern Ry. News Co. v. Russell, 91 Ga. 808; Currier v. Concord R. R. Co., 48 N. H. 321, 332; Matter of Druggist Cases, 85 Tenn. 449; Floyd v. State, 7 Tex. 215; United States v. Smith, 27 Fed. Cas. No. 16,332.) If, however, an indictment had been found within the statutory time (Code Crim. Proc. §§ 142, 143), the defendant would not be freed from liability. Therefore we cannot hold that the mere lapse of the statutory time of limitation is sufficient, but it must also appear that an indictment had not been found. This the plaintiff may prove, to show that the statute has in fact run and that no privilege exists. I am of opinion, therefore, that the order should be modified by striking out “said defendant need not answer said questions,” and inserting in place thereof, “the referee shall certify the questions and the defendant’s refusal to the court,” so that the matter may be disposed of in accordance with the facts; and if it shall then appear that the statute has in fact run, the defendant may be required to answer.

This disposition of the case does not contravene the decisions of this State which have declared, “The witness who knows what the court does not know, and what he cannot disclose without accusing himself, must in such cases judge for himself as to the effect of his answer, and if, to his mind, it may constitute a link in the chain of testimony sufficient to convict him, when other facts are shown, or to put him in jeopardy, or subject him to the hazard of a criminal charge, indictment or trial, he may remain silent. ” (People ex rel. Taylor v. Forbes, 143 N. Y. 219, 230.) As explained in that case, 11 The weight of authority seems to be in favor of the rule that the witness may be compelled to answer when he contumaciously refuses, or when it is perfectly clear and plain that he is mistaken and that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution ” (p. 231). In the instant case, prima facie, the answers to the questions cannot possibly tend to incriminate the defendant, for the reasons heretofore given, and, therefore, if he claims his privilege, the question of his right to do so is a proper matter for judicial determination.

The defendant was asked: “Will you state what patents you did own?” to which he answered: “That is impossible.” The counsel for defendant evidently has presented his objection, to the court at Special Term, to any inquiry as to the defendant’s property on the ground that only the defendant’s general reputation as to his means is admissible (citing Kniffen v. McConnell, 30 N. Y. 285, and Chellis v. Chapman, 125 id. 214).

In Kniffen v. McConnell it does not appear whether the amount of defendant’s property was shown by general reputation or by specific evidence of his property and the value thereof. Objection was taken to the admissibility of the evidence, but upon what ground does not appear. The court said (p. 289): “The objection in this case was not to the mode of proof, but to the admissibility of that kind of evidence. It may be objectionable to particularize the defendant’s property, and such evidence should be Confined to general reputation as to the circumstances of the defendant. To that extent I think it admissible ” —■ and the judgment was affirmed. In Chellis v. Chapman {supra) evidence of the defendant’s general reputation for wealth at the time of the agreement of marriage was admitted. The court said: “I apprehend, however, that the difficulty in the question before us of the evidence is not so much in adducing proof as to defendant’s pecuniary means, as in the mode of their proof. But assuming, as I think we are bound to do under the authorities, that the amount of defendant’s property is material in such an action, then evidence of the reputation which he enjoys for wealth is unobjectionable. Beputation is the common knowledge of the community, and if it is exaggerated or incorrect, the defendant has the opportunity to correct it and of giving the exact facts upon the trial ” (p. 221). While these cases sustain the reception of evidence of the defendant’s reputation for wealth, I do not understand that they sustain the defendant’s contention that the evidence must be confined to reputation and “that what particular items of property the defendant had at any time is wholly inadmissible, and that the plaintiff should be limited in her proof in this regard to the defendant’s general reputation.” The intimation in the case last cited that it was competent for the defendant to show the exact facts in contradiction of the reputed facts, would show that such facts were not alone admissible, but were the best evidence that could be adduced. The reputation of the defendant for wealth might measure the plaintiff’s expectations and be competent to show her disappointment. The true measure of damages is not that alone, but, as was said in Chellis v. Chapman (supra, 219): “That the amount of the suitor’s pecuniary means is a factor of some importance in the case of a demand of marriage cannot fairly be denied. It is a circumstance which, very frequently, must have its particular influence upon the mind of the woman in determining the question of consent or refusal, and, as I think, in a proper case, very naturally, and properly so. The ability of the man to support her in comfort and the station in life which marriage with him holds forth, are matters which may be weighed in connection with an agreement to marry.” In that regard his actual ability to support and maintain the plaintiff would seem to be the prime consideration. She cannot live on the reputed wealth. The difficulty of plaintiff proving the actual wealth may make the reputation for wealth admissible. But if plaintiff can prove the actual facts, such evidence is not alone admissible, but is the best evidence. This was distinctly held in Crosier v. Craig (47 Hun, 83; affd., without opinion, 130 N. Y. 661). This latter case does not conflict with the two prior cases, but recognizes that “evidence of the reputed amount of defendant’s property may not be incompetent, because in most cases accurate knowledge of the amount is confined to the defendant and his friends, yet it cannot be incompetent to permit the amount in defendant’s possession to be shown by direct and precise evidence, greatly superior in probative force to evidence of reputation, which is often nothing but public rumor founded upon little or no knowledge of the facts ” (p. 85).

As to the limitation as to the time of the inquiry regarding defendant’s property, I think the plaintiff is entitled to prove the estate of the defendant during the time that he might have reasonably been expected to fulfill his agreement; that would be from the date of the promise until the date of the commencement of the action, October 23, 1915, but not since that time.

The order should be modified as indicated in this opinion, and as modified affirmed, with ten dollars costs and disbursements to the respondent.

Clarke, P. J., Scott, Dowling and Smith, JJ., concurred.

Order modified as indicated in opinion, and as modified affirmed, with ten dollars costs and disbursements to respondent. Order to be settled on notice.  