Hyperlawhypertext legal database Finch v. Galigher 25 Abb. N. Cas. 404

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Finch v. Galigher

25 Abb. N. Cas. 404 Court N. Y. Supreme Court, First District, Chambers; English

Delivered by Barrett, J.

Contents

Majority

p. 404
FINCH v. GALIGHER.
N. Y. Supreme Court, First District, Chambers;
October, 1890.

Headnote

1. Service of process; exemption of non-resident party.] Although it seems that a non-resident is privileged from the service of summons in this State while here attending upon the taking of a deposition to be used in an action pending against him in the State of his residence, yet his privilege is lost by remaining in this State an unreasonable and unnecessary length of time.
2. The same ; rule applied.] So held, denying.a motion to set aside a service of summons on the afternoon of the 27th, when it was shown that the party served had, on the 25th, expressed his determination to have nothing more to do with the examination.[1]
p. 405
Motion to set aside and vacate the service of' the summons and notice upon defendant, Charles Galigher, in two actions, one by Lucius It. Finch against Charles Galigher, and the other by Henry T. Finch and Edward L. Finch against Charles Galigher and Frank C. Galigher, on the ground of irregularity, and for the reason that the same was served upon the defendant, Charles Galigher, a non-resident of the State, while attending a court herein as a party, and while attending as a party and as an attorney on his own behalf upon the taking of a deposition in the city of New York.
The affidavit of the defendant, Charles Galigher, in the first action, showed that he was a non-resident of this State, and resided in the State of Illinois ; that on September 23, 1890, he came here from that State for the purpose of attending as. a party, and with the right of cross-examining witnesses upon certain proceedings pending, for the purpose of taking upon open commission, the testimony of the plaintiff and other witnesses, in certain actions now pending in the circuit court of the United States for the southern district of Illinois, and in which said action, deponent and Frank C. Galigher, are parties defendant, and the plaintiff herein, and Henry L. Finch, are parties plaintiff; that in two of such actions the plaintiff herein is sole plaintiff, and in one of them the defendant herein is sole defendant, and one of said actions is upon the same' cause of action as the cause of action upon which the said summons in this action was issued; that defendant attended upon said proceeding in response to a notice served upon him by the attorneys for for the plaintiff herein and of the other parties plaintiff in said action in the circuit court, whereby defendant was notified that said depositions, when taken, would be read in evidence upon the trial of said circuit court actions, and that the hearing would be adjourned from time to time, and that defendant should appear upon the taking thereof, and have the right to cross examine witnesses. Defendant came to the city of New York, and on September 23,1890, appeared
p. 406
as a party, and said proceedings were further adjourned to September 26, 1890.
On September 27,1890, defendant, while still in the city-of New York in attendance as aforesaid, was served with-, the summons and notice herein by plaintiff’s attorney. Defendant was informed by plaintiff’s attorney on September-23, 1890, that the hearing on September 26, 1890, would be taken up with the examination of E. L. Finch, and that the book-keeper of the plaintiff would be examined next;; whereupon defendant informed said plaintiff’s attorney, that, he desired to, and would, appear on the subsequent hearing, and before next hearing defendant was served with the said1, summons and notice in this action.
By the affidavits for the plaintiff in opposition, it appeared that at the first hearing before the notary, held September-23, the defendant Galigher appeared, and that the hearing-was proceeded with and then adjourned to the 24th, and afterwards to the 25th, 26th and 27th, the examination being-proceeded,with on each day, and that it was still proceeding *, that Charles Galigher took no part in the proceedings on the 23rd, did not examine a witness, and stated to the notary that he did not care about the examination but only wanted' to see the plaintiff’s book-keeper, and that he was told he.would be produced the next day; that on the 24th, said defendant appeared but was present for a short time only that the book-keeper was then present, and said defendant, was told that he could examine him but said, “he didn’t, care any more about the examination and that he was not going to attend any more and that we could go on just as. we likedthat said defendant attended before the notary" on the 25tli for the last time, leaving a few minutes after became in, and before any witness had been examined. It was-also alleged that no subpoena or summons was served on said defendant requiring his appearance before the notary, and-that his appearance was voluntary and without counsel; that defendant was served on the 27th, more than two days after-
p. 407
he declared he was not going to take any further part in the taking of the depositions.
Phillips & Avery, for defendant and the motion.
Frederick M. Littlefield, for the plaintiff, opposed.

I am not prepared to follow, in all particulars, the doctrine of Greer v. Young[2] ( 120 Ill. 184 ). The courts of this State have gone very far in protecting parties and witnesses attending here upon a judicial or quasi-judicial proceeding. If Galigher had really come here to protect his interests in the taking of testimony to be used against him in Illinois, I think the principle enunciated in the cases in this State is broad enough to protect him eundo, morando et redeimdo.

The. proofs, however, overwhelmingly establish the fact that Galigher remained here longer than was necessary after he determined to have nothing more to do with the examination. Upon September 25th he expressed his intention not to return, before the notary public, and he then remained for but a few minutes, taking no part in the proceedings. He was not served until the afternoon of the 27th. Thus he had the afternoon and night of the 25tli, the whole of the 26th and the morning of the 27th to return to his home. His privilege was lost by remaining within this State an unreasonable and unnecessary length of time. The proofs show, indeed, that his presence here had no real relation to the examination of witnesses. He was here partly for his own pleasure, and partly for ulterior objects.

The motions to set aside the service of summons should therefore be denied, with $10 costs in each case.

* Code Civ. Pro. § 315.

Footnotes

  1. * In Greer v. Young, 120 Ill. 184 , a resident of Missouri was served with summons in Illinois, while in that State for the sole purpose of assisting his attorneys in taking depositions therein for use in an action then pending in Missouri against him for the same cause of action, and it was held that he was not privileged from the service of summons in *408 ■such case, first, because the rule of the common law which exempted from arrest on civil process did not apply where the service was simply by reading, and second, because the proceeding before the notary could not be regarded as a proceeding in court. Upon the first ground above taken, the court admitted that the rule had been extended to service of summons by the courts of New York, citing Person v. Grier, 66 N. Y. 124 , and Matthews v. Tufts, 87 Id. 568.
  2. † † Compare L. 1884, c. 346, § 1, and Code Civ. Pro. § 838.