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Ahrens v. Coleman

121 N.Y.S. 1121 Court N.Y. City Ct. English

Delivered by FINELITE, J.

Contents

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p. 1121
AHRENS v. COLEMAN.
(City Court of New York, Special Term.
March, 1910.)

Headnote

1. Witnesses (§ 29[1] )—Fees—Mileage—How Computed.
Under Code Civ. Proc. § 3318, allowing witnesses who reside more than three miles away 8 cents for each mile traveled in going'to the place ot attendance, mileage is to be computed from the residence of the witness.
[Ed. Note,—For other cases, see Witnesses, Cent. Dig. § 67; Dec. Dig. § 29.[1] ]
2. Witnesses (§ 21[1] )—Service op Subecena—Presumptions.
In proceedings to punish a witness for contempt in failing to appear as a witness after having been subpoenaed, where the moving affidavit was silent as° to where the witness was served, and the answering affidavit states that the witness resides at a given street and number," it will be presumed from the answering affidavit that service was had at the residence of witness.
[Ed. Note.—For other cases, see Witnesses] Cent. Dig. § 38; Dec. Dig. § 21.[1] ]
Action by Josephine Ahrens against Hugh Coleman. On motion why Mary Coleman, a witness, should not be punished for an alleged contempt in failing to obey a mandate of the court.
Motion denied.
Samuel Saltzman, for judgment creditor.
Mary Coleman, for judgment debtor.

This is a motion why Mary Coleman should not be punished for an alleged contempt committed by her in failing to obey a mandate issued out of this court.

It appears from the moving papers that a subpoena was issued under the hand of one of the justices of this court, directed to the said Mary Coleman, to appear as a witness before one of the justices of this court on the 19th day of February, 1910, to be examined as a witness in a proceeding pending therein; that at the time said subpoena was served upon said witness personally 50 cents, the subpoena fee, was paid to her; that said witness failed to obey the subpoena; that it nowhere appears in the moving affidavit at what place said subpoena was served personally upon said witness, but from the answering affidavit of said witness it appears that the said witness resides at No. 126 East 122d street, in the city of New York, Borough of Manhattan.

p. 1122
Code Civ. Proc. § 3318, reads: .
“A witness in an action or in a special proceeding attending before a court of record, or a judge thereof, is entitled, except where another fee is especially prescribed by law, to fifty cents for each day’s attendance; and, if he resides more than three miles from the place of attendance, to eight cents for each mile going to the place of attendance.”

The point here presented for decision was 'whether the witness was entitled to mileage from the place where she was s.erved with a subpoena, or from her place of residence; and it was held in Pike v. Nash, 16 How. Prac. 53, that, no matter where the service was made, mileage was to be computed from her residence. And, as was pointed out herein, that said witness resided at No. 126 East 122d street, in the city of New York, and where the moving affidavit is silent as to where said witness was served, it must be presumed from the answering affidavit that the witness was served at her residence, which place is more than three miles from the courthouse where she was to appear. Therefore she was entitled, in addition to the fee paid, to a mileage in the sum of 8 cents for each mile from her residence going to the place of attendance, as required under section 3318, Code Civ. Proc. Smith v. Hutton et al., 134 App. Div. 445 , 119 N. Y. Supp. 194 .

The witness, however, should have attended and obeyed the subpoena of the court;, but as the law is as here above pointed out, on which she relies, the court is concluded to follow the same and deny the motion to punish her for a contempt of court.

Motion denied. Settle order oh one day’s notice.

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