(dissenting). Appellant was adjudged guilty of criminal contempt of court (Judiciary Law, § 750, subd. A, par. 5) by a Judge of the Court of General Sessions, for willful refusal to answer legal and proper interrogatories before a Grand Jury and was sentenced to two thirty-day terms in City Prison, the terms to run concurrently.
Section 750 (subd. A, par. 5) of the Judiciary Law, insofar as relevant reads:
“ A. A court of record has power to punish for a criminal contempt, a person guilty of any of the following acts, and no others: * * *
“ 5. Contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory.”
The mandate of commitment adjudged De Feo guilty of willful contempt by reason of his contumacious and unlawful refusal, after being sworn, to answer legal and proper interrogatories put to him before the Grand Jury, set forth in the transcript of testimony annexed thereto and more specifically to be found in the printed record at folios 1043 to 1101, folios 1139 to 1161, folios 1297 to 1307, and folios 450 to 510.
*633The two specifications of which he was adjudged guilty are in substance as follows:
First: As to his contumacious and unlawful refusal to answer interrogatories put to him before the Grand Jury before December 4, 1953, as to how he, himself, actually spent $31,600.50 of the $107,282.33 charged to the corporate records of the Cardinal Agency, Inc., for promotion and entertainment, which he claimed he spent during the year of 1952 for entertainment and promotional purposes.
Second: As to his contumacious and unlawful refusal to answer legal and proper interrogatories after December 4, 1953, embraced in folios 1297 to 1307 of the record, as to how he, himself, actually spent for entertainment and promotional purposes more than half of the $34,492 charged in the corporate records of the Cardinal Agency, Inc., for promotion and entertainment for the period January 1, 1953, to May 31, 1953, as he claimed in one portion of his testimony, or $4,000 to $5,000 for the same period as he claimed in another portion of his testimony before the same Grand Jury.
At the hearing on the motion to punish for contempt, it was stipulated, and the court in its opinion found, that: “ The Fourth November, 1953 Grand Jury has been conducting an investigation to determine whether during the years 1951, 1952 and 1953 there was or has been in existence a conspiracy between the officers of the Cardinal Agency, Inc., a corporation doing business in the County of New York, to split the commissions received from various insurance companies, with certain officials of labor unions and other persons, in violation of Section 380 of the Penal Law and Section 5 and 113 of the State Insurance Law.”
Appellant was secretary and treasurer of Cardinal Agency, Inc., and owned 50% of its stock, the remaining 50% being held by William Martoccia, the president. The Agency, incorporated in 1950, acted as an agent or broker for insurance compames in obtaining group-plan contracts of life, health and accident insurance inuring to the benefit of employees and members of various labor unions.
The Grand Jury investigation was founded upon the apparent claim that during 1951, 1952 and 1953 appellant and Martoccia paid large sums of money to certain labor union representatives as bribes or “ kick-backs ” to induce the latter to “ steer ” substantial group insurance contracts their way; and that these payments were concealed by the bookkeeping device of debiting *634them in CardinaPs books to items such as “ office expense,” “ entertainment,” “ travel,” and “ promotional activities ”.
In an endeavor to establish those facts, the People, in a proceeding entitled “ People v. John Doe et al.,” called appellant before the Grand Jury presumably as a witness and interrogated him concerning possible payments by him or his company to labor union representatives with respect to the expenditures listed under the afore-mentioned categories. Appellant in his testimony denied having made any bribe payments to union officials. Acknowledging that he had disbursed a substantial portion of the funds debited to “ entertainment ” and other entries of that nature, he maintained that most of his expenditures along those lines were.actually for entertainment of customers at night clubs and restaurants to establish good will.
The People claim that when De Feo was interrogated more specifically concerning details of these expenditures, he became vague, evasive and unresponsive; that he claimed lack of memory with respect to large sums spent only a few months before upon the subject of night club and restaurant entertainment; and that he manifested an inability to recall any occasions when he had entertained specific persons at specific establishments and how much he had spent on any of these occasions.
When called, appellant was not advised that he was one of the parties against whom the investigation was directed. He testified before the Grand Jury on four separate occasions, namely, November 24, 1953, November 25, 1953, December 3, 1953, and December 4, 1953. At no time did he sign a waiver of immunity, and so far as the record shows he was not asked to sign one. At the first three hearings, appellant did not assert a claim of privilege, nor did the grand jury make any attempt to confer immunity upon him. Portions of his testimony at these three hearings, alleged to be contumacious, resulted in a finding of contempt under the first specification of the order of commitment. Upon his last appearance before the grand jury, to wit, on December 4, 1953, at the suggestion of the foreman, and after a conference with his own counsel, appellant asserted his privilege. The foreman thereupon stated that he granted him “ immunity for the crimes of conspiracy and for the crime of bribing labor officials.” He was then directed to answer all questions truthfully. His testimony given thereafter as found in part at folios 1297 to 1307 of the record was the basis of a finding of contempt under the second specification of the mandate of commitment.
*635The proceeding before the Grand Jury was one obviously directed against appellant himself. He was a principal officer of Cardinal Agency, Inc., and owned one half of its stock. Accordingly, the questions put to him, certainly, at his first three appearances before the Grand Jury were neither legal nor proper and there could be no unlawful refusal on his part to answer such questions.
The Constitution of the State of New York provides that “ no person shall * * * be compelled in any criminal case to be a witness against himself ” (art. I, § 6). It is the settled law of this State that a person’s constitutional privileges are violated when he is compelled to appear before a grand jury and testify in a proceeding directed against himself.
Section 750 (subd. A, par. 5) of the Judiciary Law authorizes a court to punish a person for contempt only when he refuses to answer a “ legal and proper interrogatory ”. Since the Grand Jury proceedings were directed against appellant and violated his constitutional rights, the interrogatories put to him were neither “ legal and proper,” nor was there an “ unlawful ” refusal to answer.
We hold that as to the first three hearings, the testimony appellant gave was elicited in violation of his constitutional rights, and no proceeding for contempt could be predicated thereon, even though he may not have asserted his privilege against self-incrimination. A finding of guilt as to the first specification in the mandate of commitment which is based upon appellant’s testimony at such hearings was not warranted and must therefore be annulled.
In People v. Gillette (126 App. Div. 665, 670), in dismissing • an indictment for perjury arising out of testimony given by a defendant before a Grand Jury, it was stated: “ A person against whom the inquiry of the grand jury is directed should not be required to attend before that body, much less be sworn by it, and if he is and an indictment be found, it should be set aside upon motion, and if not, if the fact appears upon the trial, it will invalidate a conviction if one be had. (People v. Singer, 18 Abb. N. C. 96; People v. Haines, 1 N. Y. Supp. 55; State v. Froiseth, 16 Minn. 296; Boone v. People, 148 Ill. 440; United States v. Edgerton, 80 Fed. Rep. 374.) ”
Though the opinion written in that case upon the question before us, was concurred in by only two members of the court, the doctrine enunciated has received repeated judicial approval. (People v. Cahill, 193 N. Y. 232, 239; People v. Cummins, 153 *636App. Div. 93, 113, affd. 209 N. Y. 283; People v. Seaman, 174 Misc. 792; People v. Luckman, 164 Misc. 230, 233; People v. Rauch, 140 Misc. 691, 693; People v. Bermel, 71 Misc. 356, 357. See, also, People v. Ferola, 215 N. Y. 285, 289, and United States v. Lawn, 115 F. Supp. 674, 677.)
In People v. Bermel (71 Misc. 356, 357-358) the court (Crane, J. later Chief Judge of the Court of Appeals) said: “ But where, on the other hand, the investigation before the grand jury is a proceeding against him or being ostensibly a general investigation is, in fact, as shown by the circumstances and evidence, a proceeding against him, then the defendant’s constitutional right is violated if he be subpoenaed before the grand jury, sworn and questioned, though he makes no claim of privilege or exemption. Briefly stated, if the person testifying is a mere witness, he must claim his privilege on the ground that his answers will incriminate him, whereas, if he be in fact the party proceeded against, he cannot be subpoenaed and sworn even though he claim no privilege. People v. Gillette, 126 App. Div. 665; People ex rel. Hummel v. Davy, 105 id. 598; Counselman v. Hitchcock, 142 U. S. 457; People v. Singer, 18 Abb. N. C. 96; People v. Haines, 1 N. Y. Supp. 55; State v. Froiseth, 16 Minn. 296; State v. Gardner, 88 id. 130.”
The recently enacted section 2447 of the Penal Law (L. 1953, ch. 891, effective Sept. 1, 1953) provides in part as follows:
“ § 2447. Witnesses’ immunity.
“ 1. In any investigation or proceeding where, by express provision of statute, a competent authority is authorized to confer immunity, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and, notwithstanding such refusal, an order is made by such competent authority that such person answer the question or produce the evidence, such person shall comply with the order. If such person complies with the order, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, then immunity shall be conferred upon him, as provided for herein..
“ 2. * Immunity ’ as used in this section means that such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order by competent authority, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received *637against him upon any criminal proceeding. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury or contempt committed in answering, or failing to answer, or in producing or failing to produce evidence, in accordance with the order, and any such answer given or evidence produced shall be admissible against him upon any criminal proceeding concerning such perjury or contempt.
“ 3. ‘ Competent authority ’ as used in this section means: * * *
“ (c) The grand jury before which a person is called to answer questions or produce evidence, when such grand jury is expressly requested by the prosecuting attorney to order such person to give an answer or produce evidence; * * *
“ 4. Immunity shall not be conferred upon any person except in accordance with the provisions of this section.”
The statute quoted which was in effect when appellant appeared before the Grand Jury makes it clear that immunity may only be conferred by ‘ ‘ competent authority. ’ ’ The grand jury is declared to be one of the agencies constituting a competent authority. But an order of the grand jury may be directed only after a claim of privilege is made by the witness, and after the grand jury is “ expressly requested by the prosecuting attorney to order such person ” to testify.
Contempt statutes must be strictly construed. “ Punishment for a criminal contempt is a drastic remedy for willful wrong.” (Matter of Spector v. Allen, 281 N. Y. 251, 259; Rutherford v. Holmes, 5 Hun 317, affd. 66 N. Y. 368.) “ To protect the liberty of the individual from possible abuse of power, punishment for contempt is hedged about with restrictions and subject to regulations imposed by the Legislature. Disobedience only of mandates of the court given in accordance' with law are subject to such punishment. The command must be clear; disobedience must be willful.” (Matter of Spector v. Allen, 281 N. Y. 251, 260, supra.)
As already noted, with respect to the first three hearings at which appellant testified, he did not in the absence of a written waiver, acquire immunity and he could not be punished for contempt in regard to the testimony he gave at those hearings because the testimony was elicited in violation of his constitutional rights.
At the fourth hearing, which was held on December 4, 1953, the Grand Jury attempted to confer immunity on appellant. The attempt was abortive, however, because it was limited, as *638recited in the mandate of commitment, merely to immunity “ for violations of sections 580 and 380 of the Penal Law.”
By the very statement of the foreman of the G-rand Jury, the immunity granted to appellant was restricted to the crimes specifically mentioned and not for any and all crimes directly or indirectly revealed by his testimony. Thus, the immunity granted did not, for example, include the crimes of larceny or violation of the State income tax laws. Though it may be argued that the statute (Penal Law, § 2447, subd. 2) conferred complete immunity in any criminal proceeding other than for perjury or contempt, nonetheless to the lay mind, the immunity granted by the foreman was in his words confined to “ crimes of conspiracy and for the crime of bribing labor officials.” Such a grant was not coextensive with and as broad in protection as his constitutional privilege against self-incrimination. “ To force disclosure from unwilling lips, the immunity must be so broad that the risk of prosecution is ended altogether (People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; Counselman v. Hitchcock, 142 U. S. 547; Heike v. United States, 227 U. S. 131, 142).” (Matter of Doyle, 257 N. Y. 244, 251, Cardozo, Ch. J.) As the immunity granted was not complete, the testimony given by appellant at the fourth hearing was also elicited in violation of his constitutional rights and no proceeding for contempt could be predicated thereon.
In any event, even if it be assumed that complete statutory immunity was accorded to appellant at the fourth hearing, the finding of contempt would still be invalid. The mandate of commitment in its entirety is predicated not only on the testimony given by appellant at the fourth hearing, but also upon that obtained from him at the first three hearings.
Moreover, the finding of guilt as to the second specification contained in the mandate of commitment, based upon testimony given by appellant at the fourth hearing as set forth in the record between folios 1297 and 1308, in our opinion fails to establish that his answers there recorded were willfully or contumaciously evasive or that they constituted a refusal to answer.
Respondent’s argument to the effect that appellant’s constitutional rights were not violated because an immunity statute (Penal Law, § 2447) was “ operative ” cannot be sustained. The plain fact is that no immunity statute was operative, nor could one become operative, until the grand jury, or one of the other duly authorized agencies mentioned in the statute, *639had actually conferred complete immunity upon appellant without limiting the grant to certain crimes, as was done here.
In conclusion, we find that there was no basis for a finding of contumacious and unlawful refusal to answer legal and proper interrogatories put to appellant as to either specification set forth in the mandate of commitment.
For all of the foregoing reasons, we dissent and vote that the mandate should be annulled and that appellant should be discharged.
Bebgan, J., concurs with Breitel, J.; Peck, P. J., concurs in concurring opinion; Cohn, J., dissents in opinion, in which Dore, J., concurs.
Order affirmed.