FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. ing questions: "Q. Have you ever been there in your life?" "Q. Have you ever been in the premises No. 5 East 44th Street in the City and County of New York?" which he refused to answer upon the ground that his answers might tend to incriminate him. By reason of such refusals, proceedings were taken to punish him for a criminal contempt, and to that end a warrant was issued, he was arrested and taken into custody, and thereupon sought, by writs of habeas corpus and certiorari, to obtain his freedom upon the ground that his arrest and restraint were illegal. The Special Term dismissed the writs and remanded the relator to the custody of the officer who made the arrest, and this court is about to reverse that order and direct that the relator be discharged. I am unable to concur in that conclusion, first, because the question discussed in the prevailing opinion is not before us, and, second, if it were, the conclusion reached is in conflict with the decision of the Court of Appeals, which it is the duty of this court to follow. The charge which was being investigated was that Canfield, during the time specified, had conducted a gambling house at the place named. The question asked, and which the relator refused to answer, was whether he had ever been in that house, and if it be assumed that his answers would have been in the affirmative, I do not see how it could be said that the same could, by any possibility, have tended to convict the defendant of a crime. In answer to this, it is suggested-not by counsel - that if the relator should be prosecuted for gambling at this place an important link in the chain of evidence on the part of the prosecution would be to show that he was present at the time he gambled. Of course, it goes without saying that he could not gamble unless he was present, but it might just as well be urged that answers to questions of whether he had ever been in the city of New York, the State of New York or the United States would tend to incriminate him, as it can that the answers to the questions which were put to him would, and we take it no one would seriously contend, if such questions were asked, he should be excused from answering on the ground named. Whether a witness shall be excused from answering a question upon the ground that his answer may tend to incriminate him always depends, as I understand the law, upon whether the court can see, upon all the facts then before it, not only that the privilege claimed is made in App. Div.] FIRST DEPARTMENT, MARCH TERM, 1903. good faith, but that the answer may tend to do what the witness claims it will. This must be so, otherwise a witness, either in a civil or criminal proceeding, could, simply by claiming the privi lege, excuse himself from testifying. There is nothing in this record which shows that the privilege was claimed in good faith, nor, as already indicated, that the answers to the questions could, by any possibility, have a tendency to do what the witness claimed they would. * If, however, it be assumed that had answers been given to the questions the same would have tended to incriminate the relator, I am, nevertheless, of the opinion that he was not excused from testifying. To hold otherwise is to entirely disregard section 342 of the Penal Code. This section refers to gambling, and provides that "no person shall be excused from giving testimony upon any investigation or proceeding for a violation of this chapter upon the ground that such testimony would tend to convict him of a crime, but such testimony cannot be received against him upon any criminal investigation or proceeding." But it is suggested that this section is in conflict with article 1, section 6, of the Constitution, which is that "no person shall * * be compelled in any criminal case to be a witness against himself." The suggestion would require very serious consideration were it not for the fact that the Court of Appeals, in People ex rel. Hackley v. Kelly (24 N. Y. 74) held otherwise. The question presented in the Hackley case was quite similar to this one. There the relator had been committed for a contempt of court in refusing to answer questions put to him relating to a charge of bribery. His refusal was put upon the ground that the questions put to him tended to incriminate him, and the statute under which it was sought to punish him for contempt by reason of such refusal was almost identical with section 342 of the Penal Code, hereinbefore quoted. There the statute (2 R. S. 683, § 14, added by Laws of 1853, chap. 539) provided that "every person offending against either of the provisions of the preceding sections in this article shall be a competent witness against any other person so offending, and may be compelled to appear and give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons, but the testimony so given shall not be used in any prosecuAPP. DIV.-VOL. LXXXI. FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. tion or proceeding, civil or criminal, against the person so testifying." It was there urged, as here, that the immunity offered was insufficient to satisfy the constitutional provision that no person should be compelled in a criminal case to be a witness against himself, inasmuch as there might be elicited from the witness matters which would furnish a link whereby the prosecution might be enabled to secure other evidence by means of which to convict the witness of a crime, but the court held that this did not render the statute unconstitutional. This case was followed in Lathrop v. Clapp (40 N. Y. 328); approved in People v. Sharp (107 id. 427), and followed by the General Term of the first department in Gilpin v. Daly (59 Hun, 413). Indeed, it is conceded in the prevailing opinion that this decision of the Court of Appeals is in point and decisive of the question here presented, unless the same has been overruled by that court, and the claim is made that it has, in People ex rel. Taylor v. Forbes (143 N. Y. 219). That case will be read in vain to find a suggestion in it that the court intended to overrule the Hackley case. On the contrary, the only reference to the Hackley case in the opinion delivered is where the same is cited with approval. It is true there are expressions in the opinion in the Taylor case antagonistic to the views expressed in the opinion in the Hackley case, but I cannot believe that the court of last resort in this State would overrule an important decision of its own, which had been recognized as the law of the State for upwards of thirty years, without saying so in express terms. Not only this, but the question presented in the Taylor case was radically different from the question presented in the Hackley case. In the former the question determined was that where a witness stated that his answers might have a tendency to incriminate him, and it could be seen that the claim was made in good faith and that the answers to the questions might have a tendency to do what the witness claimed, then the court, in the absence of a statute preventing the use of his testimony against him, was bound to excuse him from answering the questions. Here there is a statute, as already indicated, quite similar to the one under discussion in the Hackley case. I do not think the Hackley case has been overruled, and if I am correct in this, then it is the duty of this court to follow it. App. Div.] FIRST DEPARTMENT, MARCH TERM, 1903. For these reasons I am unable to concur in the opinion of Mr. Justice LAUGHLIN. I think the order appealed from is right and should be affirmed. HATCH, J., concurred. Order reversed, writs sustained and relator discharged. SARAH A. FROUNFELKER, as Widow of JOHN FROUNFELKEK Deceased, Respondent, v. THE DELAWARE, LACKAWANNA ANI WESTERN RAILROAD COMPANY, Appellant. When the court will authorize the issuing of a commission to take the oral examination of a witness not within the State. The question whether, under a commission to take the testimony of a witness not within the State, the witness shall be examined upon oral questions or upon written interrogatories is a matter resting within the judicial discretion of the court to be exercised upon the facts presented in the particular case. Where the plaintiff in a negligence action applies for a commission to take the testimony of a non-resident witness in the employ of the defendant, and it appears that such witness is reluctant to testify, although not hostile to the plaintiff, and that he refused to acquaint the plaintiff's attorneys with facts sufficient to enable them to prepare written interrogatories intelligently, the Appellate Division will not interfere with the discretion of the Special Term in permitting the witness to be examined wholly upon oral questions. VAN BRUNT, P. J., dissented. APPEAL by the defendant, The Delaware, Lackawanna and Western Railroad 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 New York on the 23d day of October, 1902, directing that a commission issue herein to examine as a witness for the plaintiff, wholly on oral questions, one Ben Le Barr who resides in the State of Pennsylvania. Hammond Odell, for the appellant. Vincent P. Donihee, for the respondent. LAUGHLIN, J.: The action is brought by the widow of John Frounfelker, deceased, under the statute of the State of Pennsylvania (Laws of FIRST DEPARTMENT, MARCH TERM, 1903. [Vol. 81. Penn. of 1851, chap. 358, § 19), to recover for his death, alleged to have been caused in that State by the negligence of the defendant. The issues have been twice tried. Upon each trial the plaintiff obtained a verdict, but the judgments entered on these verdicts were reversed on appeal. (Frounfelker v. Delaware, Lackawanna & Western R. R. Co., 48 App. Div. 206; 168 N. Y. 635; second appeal, 74 App. Div. 225.) * * The decedent was a conductor in the employ of the defendant and in charge of a freight train upon its road. Shortly after six o'clock in the morning on the 3d day of October, 1896, his train stopped on the main track a short distance west of Stroudsburgh Station owing to the fact that there was another train ahead. There was a curve in the road between 250 and 300 feet in the rear of the caboose in which the decedent was sitting at a desk. Within from five to twelve minutes after decedent's train stopped, and while it was still standing at this point, the locomotive of another train following it collided with the caboose, inflicting injuries from which the decedent died. The rules of the defendant required in case of a train stopping under such circumstances that "the flagman must immediately go back one-half a mile with danger signals * to stop any train or engine which may be following;" and prescribed that these danger signals should be given by placing torpedoes on the rail and signaling an approaching train. Another rule of the company provided that conductors and engineers would be held strictly responsible for the prompt enforcement of these rules. On the trials that have been had it appeared that the flagman did not obey these rules, and only went back from 200 to 250 feet, which did not reach around the curve, where he or his signals could be seen by an approaching train. The witness, the taking of whose testimony is authorized by the order, was the rear brakeman and flagman on this train. He has not been a witness upon either trial. One of the grounds upon which the last judgment in favor of the plaintiff was reversed by this court was that the decedent, as conductor of the train, was guilty of negligence in not enforcing the rule requiring the flagman to go back with and give danger signals. It appears that the conductor and flagman were the only persons upon the rear end of the train, and, the conductor having been killed and the flagman not called as a witness, there was no express |