Saturday, December 28, 2013

Rubenstein v. Kleven case brief

Rubenstein v. Kleven case brief summary
150 F.Supp. 47 (1957)

In plaintiff's action alleging the breach of an alleged agreement to render companionship and other services to a married man, plaintiff filed a motion to compel defendant to answer certain deposition questions. Defendant had refused to answer the questions on the grounds that his answers might incriminate him.

Defendant's answer to the complaint was that the agreement was against public policy.


  • The court observed that while the answer was not an express assertion of illegal consideration in the form of an illicit relationship, it would regard evidence of such relationship admissible under the general allegation. 
  • The court held that illegality was an affirmative defense, and if defendant wished to assert such defense predicated upon criminal acts that he himself was involved in, it had to be established through testimony or through inference. 
  • Therefore, he could not refuse to testify as to the illegal acts and at the same time suggest that illegal acts provided the basis for his affirmative defense. 
  • The court decided that because defendant refused at his deposition to incriminate himself, it would assume as the rule of the case that defendant did not intend to prove criminality at trial through his testimony or otherwise. 
  • The court ordered that plaintiff's motion would be denied and the issue of criminality foreclosed unless defendant informed plaintiff within 20 days that he intended to answer the deposition questions.

The court ordered that unless defendant notified plaintiff within 20 days that he proposed to answer the plaintiff's deposition questions, the court would dismiss plaintiff's motion to compel and foreclose the issue of criminality from being presented at trial.

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