The enforcement by the Supreme Court of its own subpoena duces tecum directed to the commissioner of investigation, now investigating the administration of relief at the direction of the mayor of the city, lies within the control of the court. (Carlisle v. Bennett, 268 N. Y. 212; Matter of Hirshfield v. Craig, 239 id. 98; People ex rel. Hastings v. Hofstadter, 258 id. 425.) By the statute under which the subpoena was obtained (Civ. Prac. Act, § 406) it might only be issued in “ a proper case.” If it should now appear that this is not “ a proper case,” then the witness to whom it is directed may contest the validity of the subpoena before the tribunal by which it was issued. Since he could not be heard before it was issued he must have that opportunity now.
The subpoena in the present case requires the production before the special committee of the council investigating the administration of relief by the commissioner of every record, memorandum and document and all information in his possession, however confidential, pertaining to the investigation now conducted by him. If sustained, the subpoena will inevitably impair the effectiveness of the commissioner’s investigation. Such a result should be averted if it is within the power of the court. The right to require the production of books and papers ought not to be exercised by an investigating body in such a manner as to paralyze another agency of government charged by law with the duty to conduct a similar investigation. The problem might be different if the committee were investigating the administration of the commissioner’s department, but this it has not been authorized to do by the resolution under which it acts. Again, a different problem would be here if the subpoena required only the production of some particular document, such as the books of the welfare department to which reference is made in the opinion of Mr. Justice Callahan, the continued possession of which might not be essential to the commissioner’s investigation.
I find nothing in the statutes pertaining to such investigations which countenances any other view. By section 803 of the New York City Charter the commissioner of investigation is authorized to conduct three different classes of investigations: First, any investigation directed by the mayor; second, any investigation directed by the council; and, thirds any investigation which in *282the opinion of the commissioner may be required in the best interests of the city. The Administrative Code of the city of New York (§ 803-1.0) provides that the commissioner shall report: “ 1. To the Council, the results of any investigation directed by the Council. 2. To the Mayor, the results of all other investigations.” By these provisions the commissioner was constituted an investigating agency both for the legislative and the executive departments of the city government, depending upon which of these had directed the investigation to be made. (Compare Humphrey’s Executor v. United States, 295 U. S. 602.) That conclusion is not left to inference alone, for it is expressly provided that the commissioner shall report to the council the results of any investigation directed by the council but, when directed to conduct an investigation by the mayor, he shall report, not to the council, but to the mayor. It seems equally clear that there was inherent in these provisions a purpose to prevent either branch of the city government from frustrating an investigation directed by the other — a purpose which is nullified if the subpoena is sustained and the commissioner required, under compulsion of legal process, to disclose to the council at this time the results of the investigation which has been directed by the mayor. To require the commissioner to reveal to the council all the information thus accumulated by him is tantamount to requiring him to report to the council concerning the results of his investigation before he has reported to the mayor as provided by law.
The question presented is not the right of the city council to investigate relief, as I understand Presiding. Justice Martin to suggest. That right is conceded and also conceded is the right of the commissioner to conduct a similar investigation. What is presented, as it seems to me, is the right of these two agencies to frustrate one another’s investigations and to use the power of subpoena for that purpose. To my mind there is no reason to prevent them from proceeding simultaneously in the performance of their duties without encroaching upon each other.
Both as a matter of discretion and as a matter of right, the subpoena duces tecum served on the commissioner should be vacated, without prejudice to the issuance of such a subpoena after the commissioner shall have concluded his investigation and reported to the mayor and also without prejudice to a subpoena, properly limited, at this time.
Order affirmed, with twenty dollars costs and disbursements.