Lederer v. Adams — 11 N.Y.S. 481

Majority

p. 481

Lederer v. Adams.

(Supreme Court, General Term, First Department.

October 24, 1890.)

Headnote

Wbits—Service—Privilege of Witness.

A motion to set aside service of a summons, on the ground that such service was-made on defendant while in attendance as witness in a legislative investigation, will not be denied for loches where it is made before the time to appear and answer the summons has expired. Thorp v. Adams, ante, 479, followed.

Appeal from special term, New York county.

Motion to set aside the service of the summons in this action, brought by Samuel M. Lederer against Thomas D. Adams, on the ground that the summons was served on defendant while attending as witness before a committee of the senate. .From an order setting the service aside plaintiff appeals.

Argued before Van Brunt, P. J., and Brady, and Daniels, JJ.

Edward C. Boardman, for appellant. John J. Adams, for respondent.

The only difference between this case and that of Thorp v. Adams, ante, 479, decided herewith, is that the defendant was served intermediate the day of his arrival and his examination, which occurred on the 19th of May last; and the point presented is that the motion should have been denied upon the ground of the loches of the defendant in making the motion. The summons was served on the 16th of May last, and the order to show cause was not granted until the 5th of June, the affidavit on which it was founded not being verified until the 3d of June. There is no such force in this point as to require a reversal of the order. The motion could properly be made at any time before the time to answer had expired, and the defendant was not, under the circumstances, called upon to exercise any extraordinary vigilance. The order appealed from should be affirmed, with $10 costs. All concur.