Alzmann v. Maher

Hagarty, J. (dissenting).

I dissent. The relator, as a matter of law, is exempt from prosecution for or on account of any of the matters or things concerning which he testified before the grand jury unless he waived immunity as prescribed by law (Penal Law, § 2446, as added by Laws of 1912, chap. 312). This law, for the purpose of providing against misunderstanding, fraud or coercion, provides that such immunity may be waived by any one entitled thereto, provided he executes, acknowledges and files in the office of the county clerk a statement expressly waiving such immunity. Had the relator executed and acknowledged such a statement and put it in his pocket, he did not, in my opinion, waive immunity within the contemplation of the protective provision of the law. In this case he might have done just that, because it was not filed until after the testimony had been given. How it came to be filed, or by whom it was filed, does not appear. One of the essential elements of waiver is lacking.

Order dismissing writ of habeas corpus affirmed.