In my opinion the conduct of the witness does not constitute a criminal contempt of court, even though it were conceded that his testimony was improbable in some respects and that in some respects it was false.
In this State the power to punish for criminal contempt is strictly limited by statute (Judiciary Law, § 750), which provides that a court of record may punish as a contempt certain specified acts “ and no others.” The only contempt with which the petitioner, with any show of reason, can be charged is the violation of subdivision 5 of section 750 of the Judiciary Law which specifies as an act of contempt “ Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory.” There is no provision which declares that the refusal of a witness “ to answer truthfully ” shall constitute contempt, even though, of course, it must have been realized that a false answer might be more subversive of the administration of justice, and, therefore, more “ obstructive,” than a refusal to answer at all. The commission of perjury has always for its object the concealment of the truth and, therefore, if, as it is contended, “ obstruction ” by the witness were sufficient to constitute contempt, perjury would always be thus punishable.
The Legislature, however, appears to have concluded that perjury should be prosecuted by the ordinary processes, and subject to the ancient safeguards, which are provided by the criminal law. Such is the rule established by many decisions in this State. (Matter of Foster v. Hastings, 263 N. Y. 311; People ex rel. Falk v. Sheriff of New York County, 258 id. 437; Matter of Silberman Dairy Co. v. Econopouly, 177 App. Div. 97.) Even though “ decisions of other States, sustaining the right to punish for contempt, are of little value here where such right has been limited by statute ” (Matter of Foster v. Hastings, supra), yet it is interesting to note that the same conclusion was expressed by the Supreme Court of the United States in Ex Parte Hudgings (249 U. S. 378). There were strong reasons for withholding from the court a power that might easily become the means, of which history had taught *67us to beware, for exacting from a witness the answer which seems desirable and which is believed to be true. “ To hold that he must stay in jail because he has given an answer ' no ’ would be equivalent to ruling that he must stay there till he gives the answer “ yes/ ” (People ex rel. Falk v. Sheriff of New York County, supra.) But quite apart from these considerations, it is not sufficient to assert that this summary power ought to be vested in the court. It is necessary to establish affirmatively that it has been conferred.
The provision of the statute which declares a “ refusal * * * to answer ” to be contempt may perhaps be extended to include instances where the answer is so frivolous upon its face that it does not constitute an answer at all. (Compare United States v. Appel, 211 Fed. 495.) To bring such a case within the statute, however, the answer must be so absurd that mere inspection makes it necessary to conclude that the witness did not intend his answer to be seriously considered. If, by way of illustration, a witness were asked where he was on the day preceding his examination here and should answer that he was at the North Pole, the court would be justified in regarding this as equivalent to a refusal to answer the question at all. But if the witness should testify that he was in an adjacent State and it should then appear, either upon cross-examination or by other proof, that he had been elsewhere, bis testimony would not constitute a refusal to answer and in my opinion would not justify punishment for criminal contempt. This is not an artificial distinction. It proceeds upon the theory that ordinarily the judge presiding can determine without difficulty whether a witness has refused to answer but that the truthfulness of the answer, and especially whether its falsity is intentional, is not capable of summary determination without serious danger of injustice. For, it must be remembered that the witness frequently is not a party to the proceeding in which he has testified. Consequently, if summarily punishable for contempt, he would be deprived of the opportunity to offer by counsel of Ms own selection, as a matter of right and not as a matter of favor, a full explanation of apparent contradictions and of producing evidence by other witnesses wMch might cause an improbable story to appear less improbable. I do not perceive how tMs question is affected by the circumstance that the testimony of a witness is shown to be false by Ms own evidence, however inconclusive, rather than by other proof, however strong; nor do I find anything in the statute to warrant that distinction.
The record here discloses a situation, wMch to our great regret is not unusual, where the witness gave testimony which Ms cross-examination indicates to have been false. In consequence he *68became involved in frequent contradictions. He testified to many improbabilities. But I fail to see how such testimony can be transformed into a refusal to answer any question. If this witness may be committed for criminal contempt, then we must anticipate that the same consequences will follow the trial of issues of fact in every court of record in the State whenever the judge presiding shall conclude that the testimony of a witness is not true. In my opinion this dangerous summary power was not intended to be given to the court.
The order of certiorari should, therefore, be sustained and the determination annulled.
Order of certiorari dismissed, and determination of respondent confirmed.