In re Attorney General

MERWIN, J.

The first question to be determined is whether there is any right of appeal to this court from the orders in question. The claim of the respondents is that the proceeding under the statute of 1897 is not a special proceeding, within the meaning of the Code of Civil Procedure, and that, therefore, there is no remedy by appeal. By sections 3333 and 3334, Code Civ. Proc., it is provided that the word “action,” when applied to judicial proceedings, “signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public •offence,” and “that every other prosecution by a party, for either of the purposes” above specified, is a special proceeding. By section 1356 of the Code it is provided' that an appeal may be taken to the appellate division from an order affecting a substantial right, made by a justice of the supreme court in a special proceeding instituted before him, pursuant to a special statutory provision. Here is a special statutory provision that in form gives to the attorney general a right to examine witnesses. In this proceeding he seeks to enforce that right against these respondents. It is, I think, a special proceeding, within the meaning of the provision giving the right of appeal. See In re Ryers, 72 N. Y. 1, 4; In re Cooper, 22 N. Y. 67, 87.

Coming, then, to the consideration of the appeal, we are met at the threshold of the case with the proposition of the respondents that the justice had no right to entertain the application of the attorney general, for the reason that the duty imposed by the act upon the justice was not of a judicial character. Very evidently, it was the intention of the legislature to impose a duty upon the justice similar in its character to that imposed upon a justice by the provisions of the Code in relation to depositions taken before or after the commencement of a suit. Code Civ. Proc. §§ 870-886. It can hardly be claimed that the action of the justice under those provisions is not of a judicial character. So, by other provisions of the Code (section 914 et seq.), a justice may be called upon to act with reference to depositions taken within the state for use without the state. I am not aware of its being held that a justice had no right to perform the duty imposed by those provisions. There are many statutory provisions by which, upon investigations by public bodies of matters of public interest, the attendance of witnesses may be enforced by order or summons obtained from a justice of the supreme court. In practice, the duties that may be imposed upon justices of the supreme court are regarded as quite varied, as may be illustrated by the provisions of many statutes requiring certificates of incorporation to be'approved of by them, and the statute giving them power to take acknowledgments of conveyances. By the act in question, a written application is to be presented to the justice, complying so far as practicable with certain provisions of the Code, and it must appear to the justice that the order for examination is necessary. He may require notice to be given, and may grant a preliminary injunction, as may appear to him to be proper or expedient. The justice was thus called upon to pass judgment upon the application as presented, and determine whether the applicant was entitled to the relief he asked. He was called upon to construe and apply the law, and that is the peculiar province of the judicial department. Cooley, Const. Lim. (6th Ed.) 109. The fact that the effect of the proceeding may be to aid an administrative or executive officer in the discharge of a duty imposed upon him by law does not change the character of the action of the justice. Brimson Case, 154 U. S. 447, 487, 14 Sup. Ct. 1125. In that case the federal authorities mainly relied on by the counsel for the respondents are discussed, and it is quite apparent that they do not apply to a case like the present. In Be Cooper, supra, Judge Selden, at page 84, states as the principle to be deduced from the authorities which he cites “that when any power is conferred upon a court of justice, to be exercised by it as a court, in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the power.”- The act in question did not, I think, impose upon the justice a function of a nonjudicial character.

The next question is whether the application or petition' of the attorney general was upon its face sufficient to entitle him to the benefit of the law. In the petition, after a reference to the provisions of the act, it is stated, “upon information and belief, that heretofore certain railroad and other corporations, foreign and domestic, entered into ¿ certain illegal contract, arrangement, agreement, or combination limiting the production of anthracite coal.” It is then stated by the petitioner that “he deems it necessary and proper to procure the testimony of the following witnesses before beginning any action or proceeding in reference to the matters above set forth, as provided for by said chapter 383 of the Laws of 1897 [then giving the names and residences of six persons]; that your petitioner is informed and believes that such persons have knowledge and information as to such illegal contract, and is desirous of examining said persons under oath for the purpose of determining whether an action or proceeding should be commenced under such acts, against any person, trustee, director, manager, or other officer of a corporation, or against a corporation, foreign or domestic, and of examining and procuring the testimony of persons hereinbefore named as witnesses under the provisions of such act”; “that it is not practicable to set out with greater particularity any of the matters required by article T, tit. 3, c. 9, of the Code of Civil Procedure, on like applications.” It is not stated why it is not practicable to set out more fully the matters required by the Code. The act provided that the provisions of article 1, above referred to, should apply “so far as practicable.” Under those provisions, it must appear that the testimony desired is material and necessary; and, under rule 82 of the supreme court rules, the affidavit must specify the facts and circumstances which show that the examination is material and necessary. An affidavit must be presented setting forth, among other things, the names and residences of the expected parties, the nature of the expected controversy, and the circumstances which render it necessary for the protection of the applicant’s rights that the witnesses’ testimony should be perpetuated. In re Ketchum, 60 How. Prac. 154. There must be reasonable ground to believe that the application is in good faith. The granting of the order is somewhat in the discretion of the judge. Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. 613. In the case cited, it is said the judge must be able to see from the facts stated that the testimony is material and necessary. The right to make an examination is purely statutory, and the provisions of the statute must be followed. Balcom v. Adams (Sup.) 2 N. Y. Supp. 255; Heishon v. Insurance Co., 77 N. Y. 278.

In the petition in the present case no reason is given why it is not practicable to state the names and residences of the expected parties. The information is not stated upon which a belief is founded that an alleged contract has been entered into, or the information upon which a belief is founded that the witnesses named have any knowledge or information as to such illegal contract, or that the testimony desired is material and necessary, or the facts showing such necessity and materiality. The sources of information are not given. Allegations on information and belief, without stating the sources of information, are, as a rule, disregarded. By section 5 of the act of 1897 it is provided that, “if it appears to the satisfaction of the justice of the supreme court to whom the application for the order is made that such an order is necessary, then such order shall be granted.” In the petition no facts are stated from which the judge would be authorized to arrive at the conclusion that the order was necessary. The petitioner states that he deems it necessary and proper to procure the testimony of the persons named, and that he is desirous of examining them, for the purpose of determining whether an action should be commenced under the act. The opinion and desire of the petitioner are not enough. If that was all that was necessary to entitle the petitioner to the order, the judicial action of the judge would be minimized to a greater extent than it can be assumed that the legislature intended. By making the provisions of the Code, in relation to depositions taken before suit, applicable (People v. Banks, 67 N. Y. 569), an intention is apparent to provide -for these examinations the same safeguards that are deemed to be necessary for the ordinary examinations of that character. It was not designed to make the duty of the judge a clerical one, or require him to act upon the demand simply of any officer. The petition was, I think, fatally defective in failing to state facts sufficient to authorize a determination by the justice that the order was necessary, as well as in failing to comply with provisions of the Code, and not showing any reason why it was not practicable to do so.

Having reached the conclusion that the petitioner did not, by his petition, show that he was entitled to the benefit of the statute, assuming the statute to be legal, it is not necessary to consider the challenges made by the respondents to the validity of the act itself, upon constitutional grounds. It follows that the order for examination was properly set aside, and that the orders appealed from should be affirmed.

Orders appealed from affirmed, with §10 costs and disbursements upon each appeal.

PUTNAM, J., concurs. PARKER, P. J., concurs in result.