(131 Misc. Rep. 96) (227 N.Y.S.) PEOPLE v. BEALE. Supreme Court, Broome County. January 7, 1928. 1. Criminal law 42-Immunity of witness in investigation of fraudulent practices is as broad as constitutional prohibition against compelling person to be witness against himself (General Business Law, § 359, as added by laws 1921, c. 649, as amended by Laws 1926, c. 617, § 6; Const. art. 1, § 6). Immunity granted by General Business Law, § 359, as added by Laws 1921, c. 649, as amended by Laws 1926, c. 617, § 6, to witness called in investigation by Attorney General respecting fraudulent practices in securities and commodities, from subsequently being prosecuted or subjected to any penalty or forfeiture for or on account of any transaction concerning which he has testified or produced evidence, is as broad as the requirements of Const. art. 1, § 6, providing that no person shall be compelled in a criminal case to be a witness against himself. 2. Criminal law 42-Defendant, examined in Attorney General's investigation after indictment, and granted immunity, could not be prosecuted on facts brought out at investigation (General Business Law, art. 23-A). Where defendant, after being indicted for forgery in the second degree on facts involving question of his authority as president of a corporation, was called as witness in proceedings by Attorney General under General Business Law, art. 23-A (sections 352 to 359-G), as added by Laws 1921, c. 649, as amended, to investigate affairs of the corporation, and under section 359, as amended by Laws 1926, c. 617, § 6, was granted absolute immunity respecting anything to which he might testify to on the hearing, such immunity extended not only to use of defendant's testimony against him in a criminal case, but prevented his prosecution on any charge involving facts discovered as result of information furnished by his testimony; statute applying not only to prosecutions subject to indictment, but also to prosecutions on existing indictments. Fred D. Beale was indicted for forgery in the second degree. On defendant's motion to dismiss the indictment. Motion granted, and defendant discharged from custody. U. C. Lyons, Dist. Atty., of Binghamton, for the People. RHODES, J. The indictment charges the defendant with forgery in the second degree in that he forged the name of Laverne Chase upon the back of a check made by the Mobinco Brokerage Com For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes pany, Inc., payable to the order of said Chase. The defendant was the president of the said company from the time of its incorporation about the year 1924, at least until the time that the defendant left Binghamton in September, 1925. Obviously the question of defendant's guilt under said indictment involves the question as to his authority as president, his dealings with the company, and many facts and circumstances relative to its affairs. After the indictment was returned, and on the 2d day of July, 1926, the defendant was brought to Binghamton from the state prison at Auburn, where he was confined under a conviction of grave robbing, and was examined at length concerning the affairs of said brokerage company by Deputy Attorney General Richard T. Anderson, representing the Attorney General of the state of New York in an investigation of the affairs of the said brokerage company conducted pursuant to the authority of article 23-A of the General Business Law (added by Laws 1921, c. 649, as amended), which said article relates to fraudulent practices in respect to stocks, bonds, and other securities and commodities. As soon as said defendant was sworn, the said Deputy Attorney General stated to him as follows: "Mr. Beale, the state of New York, through the Attorney General, wishes to examine you about certain matters pertinent and relevant to the affairs of the Mobinco Brokerage Company, Inc. Now I shall ask you a great many questions, and if you answer any of these questions, whether you think they incriminate you or not, the state of New York will give you complete immunity from use of any information which you may give here or in any other place, whether before a grand jury or in the trial of any indictment. Anything you say here will be privileged, and if you answer fairly and fully you need have no fear that you may incriminate yourself by the use of these proceedings anywhere. It is upon that understanding that you are being examined." [1, 2] Thereupon the examination proceeded and the defendant testified at great length concerning the affairs of said company. Section 359 of said article 23-A of the General Business Law (added by Laws 1921, c. 649, as amended by Laws 1926, c. 617, § 6), is as follows: "Sec. 359. Immunity. If any person shall ask to be excused from testifying or producing any book, paper or other document before the Attorney General or his deputy, or other officer designated by him, or before any court, or magistrate, or referee, upon any trial, investigation or proceeding initiated by the Attorney General, district attorney, grand jury or court pursuant to the provisions of this article upon the ground or for the reason that the testimony or evidence, documentary or otherwise required of him (227 N.Y.S.) may tend to incriminate him or to convict him of a crime or to subject him to a penalty or forfeiture, and shall notwithstanding be directed by the court, referee, magistrate or officer conducting the inquiry to testify or to produce such book, paper or document, he must none the less comply with such direction but in such event he shall not thereafter be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, pursuant thereto and no testimony so given or produced shall be received against him upon any criminal action, suit or proceeding, investigation, inquisition or inquiry. "Provided, however, no person so testifying shall be exempt from prosecution or punishment for any perjury committed by him in his testimony given as herein provided for, nor shall immunity apply to corporations or to the officers as such." In the absence of such a statute, the defendant, if forced to testify, would be entitled to immunity under the provisions of section 6 of article 1 of the Constitution of the state of New York, which provides in substance that no person shall be compelled in any criminal case to be a witness against himself. Such immunity would extend not only to the use of his testimony against him in any criminal case, but it would prevent his prosecution upon any charge involving any of the facts which might be discovered as a result of information furnished by his testimony. See People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 68 N. E. 353. Therefore the immunity granted by said section 359 of the General Business Law, to be effective, must be as broad as the requirements of the said provision of the Constitution. Otherwise the defendant is not completely protected, nor given complete immunity, and was not obliged to testify. Thus the evident purpose of said section 359 is to grant full and complete immunity to a person examined as a witness. Having in mind the constitutional requirements, I think the statute must be held to mean exactly what it says, which is to the effect that if a witness shall be required to testify, "he shall not thereafter be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, pursuant thereto. Upon the hearing of this application, the attorneys for the respective parties apparently were in agreement that the examination of the defendant by the Deputy Attorney General would bar any subsequent indictment or prosecution involving the matters concerning which the defendant was examined. The district attorney, however, suggests that there is a distinction between such a situation and one where the indictment was returned before the examination made pursuant to the statute. I am not able to find any reason for such distinction. The statute prohibits the prosecution of any person for any matter concerning which he may have been examined as a witness. If it were permissible for an indictment to be returned against a defendant and thereafter to examine him pursuant to the authority of the statute without granting him immunity, the purpose and intent of the statute would be evaded and the defendant would be deprived of his constitutional right to such immunity. I think the examination of the defendant operated as a bar both as to any prosecutions under indictments returned previous to such examination, and indictments subsequently returned. The defendant's motion should be granted, and the indictment dismissed, and defendant discharged from custody thereunder. (222 App. Div. 561) R. C. WILLIAMS & CO., Inc., v. EUHLER et ux. Supreme Court, Appellate Division, Second Department. January 27, 1928. 1. Appeal and error 1180(2)—Reversal of order appealed from, granting motion for judgment on pleadings, will necessarily cause judgment entered on order to fall. Where order granted motion for judgment on pleadings and dismissed complaint, and judgment was entered on order, reversal of order ap pealed from will necessarily cause judgment to fall. 2. Fraudulent conveyances 263(1)-Complaint by judgment creditor for fraudulent transfer from husband to wife, not stating time of transfer, held insufficient (Real Property Law, § 94). Complaint by judgment creditor to set aside fraudulent transfers from husband, a judgment debtor, to wife alleging fraudulent transfer without lawful consideration with intention to defraud plaintiff and other creditors, but failing to allege when alleged fraudulent transfers were made, held insufficient under Real Property Law, § 94, creating presumption of fraud as against creditors at time of transfer. 3. Fraudulent conveyances 260-Complaint alleging transfer of property in fraud of existing creditors must allege plaintiff was creditor at time of fraudulent transfer (Real Property Law, § 94). Under Real Property Law, § 94, providing that grant of real property to person, consideration being paid by another, is presumed fraudulent For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (227 N.Y.S.) as against creditors, at that time, of person paying consideration, pleader, intending to allege transfer of property in fraud of existing creditors, must allege that he was creditor at time of alleged fraudulent transfer. 4. Fraudulent conveyances 261-Complaint, to allege transfer from husband to wife to defraud future creditors, must allege that judgment debtor retained unreasonably small capital, or intended to incur debt beyond ability to pay (Debtor and Creditor Law, §§ 274, 275). Under Debtor and Creditor Law, §§ 274, 275, prescribing transfers fraudulent as to future creditors, complaint, to allege that judgment debtor's purpose in purchasing property and placing it in name of wife was to cheat future creditors, must allege that judgment debtor retained at time of conveyance an unreasonably small capital with which to meet his transaction with plaintiff creditor, or that in making transfer he intended and was about to incur debts beyond his ability to pay as they matured, and complaint failing to so allege is insufficient. Appeal from Special Term, Kings County. Action by R. C. Williams & Co., Inc., a judgment creditor, suing in its behalf and for the benefit of other creditors similarly situated, against Henry Euhler, and wife, Freda Euhler. From an order of the Special Term, dismissing its complaint in favor of defendant Freda Euhler, plaintiff appeals. Affirmed, with leave to plaintiff to plead over. Argued before LAZANSKY, P. J., and YOUNG, KAPPER, HAGARTY, and SEEGER, JJ. Harris Jay Griston, of New York City (Charles Braunhut, of New York City, on the brief), for appellant. Charles B. Law, of Brooklyn, for respondent., KAPPER, J. [1] The appeal is from an order granting the motion of the defendant Freda Euhler for judgment on the pleadings and dismissing the complaint. A judgment was entered upon this order, but, as the appeal is from the order only, a point of the respondent is that the appeal should have been from the judgment, and not from the order. I do not think the point is of sufficient importance upon which to determine this appeal, for, if the order was improperly made, its reversal will necessarily cause the judgment to fall. [2] The action is by a judgment creditor, seeking to set aside alleged fraudulent transfers. The judgment debtor is the defendant Henry Euhler, husband of the respondent Freda Euhler. The plain For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |