On Rehearing.
A rehearing of the motion to compel the defendants to serve a verified answer has been granted at their urgent solicitation. I will consider .first certain criticisms upon the opinion heretofore handed down before reconsidering it on the merits.
It is intimated by defendants that the court’s suggestion that a corporation which has no officer who can verify its answer without tending to .incriminate himself, and who is willing to do so, should elect one who can is immoral. Why? It can hardly be assumed that a corporation in such case (which, indeed, is very hard to imagine) ought to submit to a judgment by default if it has a defense. On the con-traiy, it would seem to be clearly its duty to elect an officer who can verify its answer without incriminating himself.
Next, they say that such an officer would be a dummy, elected to deceive the court and evade the law. I assume exactly the contrary, namely, that such an officer is elected because he can verify without incriminating himself, and that the corporation will not ask him to verify a false answer, and, that if it does, he will refuse to do so.
Another criticism made is that the by-laws of the corporation may not enable it to fill a vacancy. There may be such a corporation, but I will not make my decision depend upon such an assumption.
Reconsidering the decision on_its merits, the custom stated in the defendants’ affidavits that unverified answers of corporations in libel suits are accepted by practitioners in New York City depends upon the decision made at Special Term in 1888 in the case of Goff v. Star Printing Co., 21 Abb. N. C. 211. This case is not binding even on any court of the state of New York, and of course is not binding on the federal courts, which follow only the decisions of the highest state tribunals in construing state statutes. What I am bound to follow under section 914, U. S. Rev. Stat. (U. S. Comp. St. 1901, *665p. 684), in this case, is the provision of section 523 of the Code of Civil Procedure that:
"Where a pleading is verified, each subsequent pleading, except a demurrer, on the general answer of an infant by his guardian ad litem, must also be verified.”
This, it may be said in passing, is a wise and beneficial requirement, intended to bring out the truth of every controversy in the very first statement; allegations of the complaint not denied being admitted.
The next two provisions involve substantive law. They are:
“But the verification may be omitted, in a case where it is not otherwise specially prescribed by law', where the party pleading would be privileged from testifying, as a witness, concerning an allegation or denial contained in the pleading. A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein.”
As to the extent of the privilege against incrimination and the extent of immunity conferred upon witnesses, I am bound to follow the fifth amendment to the Constitution of the United States, the acts of February 25, 1903, 32 Stat. U. 903 (U. S. Comp. St. Supp. 1909, p. 1142), and June 30, 1906, 34 Stat. U. 798, and the decisions of the Court of Appeals of this circuit and of the Supreme Court of the United States.
The laws of the state of New York confer no sufficient immunity upon witnesses in respect to testimony which may incriminate them and the laws of the United States conferring immunity to persons testifying in connection with the interstate commerce law and antitrust law does not extend to the verification of pleadings.
The decision in the Goff Case, supra, seems to me either to hold that corporations are entitled to the privilege against self-incrimination or to extend the personal privilege of an officer of a corporation to the corporation itself, most likely the former, as it permits the corporation to serve an unverified answer without any proof whatever that none of its officers can verify the answer without incriminating or tending to incriminate himself.
On the other hand, the decisions of the Supreme Court of the United States are directly to the contrary. Hale v. Henkel, 201 U. S. 43, 70, 78, 26 Sup. Ct. 370, 50 L. Ed. 652, a case arising under the anti-trust law, and Wilson v. United States, 221 U. S. 361, 382 to 388, 31 Sup. Ct. 538, 55 L. Ed. 771, a criminal case, if T understand them, hold distinctly that a corporation has no privilege against self-incrimination under the fifth amendment to the Constitution, and that its officers and employes cannot set up their personal privilege for its benefit. This being what the defendants are trying to accomplish in this case, the motion is denied.