New York World's Fair 1964-1965 Corp. v. Beame

Eager, J. (dissenting).

I agree that the Comptroller has subpoena power “to require the attendance” of persons, to the end that he may “ examine and take the testimony under oath of such persons ” for the purposes set forth .in subdivision b of section 93 of the New York City Charter. Such power as he possessed to issue a subpoena ‘ ‘ to require the attendance ’ ’ of a person as a witness, in accordance with the provisions of such section was not, in my opinion, abrogated by the repeal of section 406 of the Civil Practice Act.

. Clearly, however, the power conferred upon the Comptroller by subdivision b of section 93 extends solely to require the attendance of witnesses, and he is not expressly given the authority to require the production of documents or papers for *619any purpose. If he is to be given the broad subpoena and investigatory powers he seeks in this proceeding, it would be necessary for the Legislature to so provide.

The statute does not confer upon the Comptroller blanket power to issue at will subpoenas to require any citizen or corporation to bring in private books and records for his general inspection. The subpoena power does not operate in a vacuum but always in the context of a relevancy to the effective pertinent duty of the officer or body authorized to subpoena and examine witnesses.” (See Matter of Dawn Operators v. Lyon, 283 App. Div. 358, 359 [Bergan, J.], app. dsmd. 307 N. Y. 673.)

Unquestionably, the objective of the Comptroller is to obtain an unlimited discovery and inspection of the papers, books and records of the New York World’s Fair 1964-1965 Corporation (Fair Corporation), including the right to a complete financial audit with respect to its operations and present fiscal condition. It is apparent that he claims that his subpoena duces tecum and the provisions of the Special Term order entitle him to examine generally into the administration, conduct and control of the financial and business affairs of the Fair Corporation. But he has no duties whatever with respect to the management or conduct of its business and financial affairs. He is not a judicial officer, an authorized crime investigator, or an officer with general investigatory powers. As a statutory officer, he has only such powers as are conferred upon him by statute. He certainly does not have the power to conduct an examination of the private papers, books and records of the corporation on the theory that it may reveal improprieties and breaches of trust in its management because " that is precisely the sort of official inquisition that uniformly has met with judicial condemnation.” (Matter of Ellis, 176 Misc. 887, 891, citing Jones v. Securities & Exch. Comm., 298 U. S. 1, 26, and distinguishing Matter of Edge Ho Holding Corp., 256 N. Y. 374, relied on in the majority opinion.)

The Fair Corporation, as a membership corporation, is an independent entity. There is no statutory or contractual provision which presently vests a Comptroller or his city with any right of supervision or control with respect to the business of a particular corporation. Certainly, the Comptroller does not have the general and unrestricted power to audit the books of a corporation upon the ground that the public or the city generally has an interest in the affairs of the corporation. (Cf. Matter of New York Post Corp. v. Moses, 10 N Y 2d 199.)

Concededly, the city itself has very substantial interests at stake in the matter of the performance in good faith by the Fair Corporation of the obligations imposed upon it by statute and *620by the terms of the lease of the fairgrounds from the city. But, absent statutory provision therefor, the remedies of the city are limited to proceedings wherein the rights of the Fair Corporation may be adequately protected. The books and records which the Comptroller seeks to examine are not proposed to be used in connection with any presently pending judicial or quasi-judicial proceeding. The subpoena process may not be used here independently of such a proceeding as a remedy for protection against present or prospective breaches of contract.

The decision here could sei-ve as a dangerous precedent to allow a fiscal officer of a municipality, with but limited powers, to conduct, without adequate safeguards, a general examination into the private affairs of individuals or corporations.

Ordinarily, a court does not have the authority to confer subpoena powers where they do not exist by statute. (See Matter of Art Metal Constr. Co., 260 App. Div. 153.) Since under the terms of the order of Special Term the Comptroller would be empowered, pursuant to his subpoena duces tecum, to examine generally the papers, records and books of the Fair Corporation for the purpose of “ an investigation and audit into the operation and accounts ” of the Fair Corporation, and inasmuch as the Comptroller does not have such power, the order of Special Term should be reversed and the motion to quash the subpoena granted.

Botein, P. J., and Steuer, J., concur with Stevens, J.; Eager, J., dissents in opinion in which Breitel, J., concurs.

Order, entered on February 26, 1965, affirmed, without costs or disbursements to either party.