
    In the Matter of the Application of John F. Gilchrist and Others, Constituting the Transit Commission of the State of New York, for a Warrant Committing Albert H. Wiggin to Jail under the Provisions of Section 19 of the Public Service Commission Law.
    Supreme Court, New York County,
    September 15, 1927.
    (See headnote in Matter of Gilchrist [In Re Dahl], ante, p. 456.)
    Proceeding under section 19 of the Public Service Commission Law to commit a witness to jail for refusal to answer questions.
    
      Clarence M. Lewis [Samuel Untermyer, Irwin Untermyer and I. Maurice Wormser of counsel], for the Transit Commission.
    
      Rushmore, Bisbee & Stern [ Nathan L. Miller, Henry Root Stern, H. G. Pickering and Betram F. Shipman of counsel], for the witness Albert H. Wiggin.
    
      William D. Guthrie and Samuel Seabury, amici curiae, for other witnesses.
   Frankenthaler, J.

This is a proceeding of a similar nature to that in Matter of Gilchrist (In re Dahl), decided herewith. (See 130 Misc. 456.)

The questions which the witness Wiggin refused to answer are unauthorized and immaterial under the decision in Matter of Barnes (204 N. Y. 108). Wiggin stated the number of shares of stock of the Brooklyn-Manhattan Transit Company (hereinafter referred to as the B.-M. T.) and of the Interborough Rapid Transit Company (hereinafter referred to as the I. R. T.), respectively, which he owned. Thus, as to I. R. T. stock, he replied that he owned 3,600 shares. He declined to answer when he bought these. Under the decision in the Barnes case he was correct in declining to answer that question.

He was also asked what he paid for his stock in the I. R. T. and whether he bought his I. R. T. stock before or after the B.-M. T. bought its I. R. T. stock and whether he bought his stock at lower prices than the B.-M. T. bought its I. R. T. stock. The declinations to answer these questions were well founded. (Harriman v. Interstate Commerce Commission, 211 U. S. 407; People v. Foster, 236 N. Y. 610; Matter of Barnes, supra.)

The witness Wiggin further testified that he was a very large holder of B.-M. T. stock and that his holdings amounted to 38,500 shares of common and 20,003 shares of preferred. He refused, however, to state whether he got that stock at the time of the reorganization of the B.-M. T. The witness said: I decline to answer the questions as to when I purchased and the prices I paid.” In this declination the witness was within his legal rights under the authority of the cases above cited. The testimony sought to be elicited was neither material nor pertinent for purposes of the present investigation. So also the witness was justified in refusing to answer whether or not he held his stock in July, 1926, when the I. R. T. strike occurred, this being an attempt to ascertain by indirection the same fact, which for reasons heretofore stated is immaterial and irrelevant for the purposes of the present investigation.

These are the only questions which the witness Wiggin declined to answer. There were no refusals to answer on his part with reference to acquisitions by the B.-M. T. in the I. R. T. as in the case of his fellow-witness Dahl.

For the foregoing reasons the court denies the motion in all respects as to the witness Albert H. Wiggin.

Settle order on notice.  