Sizer v. Hampton & Branchville Railroad & Lumber Co.

Majority

p. 232

(57 App. Div. 390.)

SIZER v. HAMPTON & B. R. & LUMBER CO.

(Supreme Court, Appellate Division, First Department.

January 25, 1901.)

Headnote

Witnesses—Nonresidence—Service of Process—Exemption—Forfeiture.

Where a nonresident of the state came to New York City solely for the purpose of testifying in a cause, and the evidence was closed Friday afternoon, and he remained until Monday, he was not exempt from service of process, since he forfeited his privilege by remaining longer than, necessary.

Appeal from special term.

Action by Robert R. Sizer against the Hampton & Branchville Railroad & Lumber Company. From an order denying a motion to set

p. 233

aside service of summons on defendant’s president, defendant appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHLIN, PATTERSON, and O’BRIEN, JJ.

Willis B. Dowd, for appellant.

Eustace Conway, for respondent.

On the 26th of October, 1900, the summons in this, action was served on one Mauldin, who seems to be the president and treasurer of the defendant corporation. He moves to set aside the service upon the ground that he is a nonresident of this state and the defendant is a foreign corporation, and that service was made upon him while he was within the state for the sole reason that he was in attendance as a witness in behalf of his company in a suit tried in the city court of the city of New York. That suit was one in which his company was plaintiff and the plaintiff here was defendant, but Mauldin does not claim that he was in charge of the case, or that he had any connection with it except as a necessary witness. It appears from the affidavits of the plaintiff that the trial of the case in which Mauldin was a witness was begun on Friday, the 19th of October; that all the testimony was concluded on that day, shortly before 4 o’clock; that the case was adjourned for the summing up and the charge to the jury until Monday, the 22d of October; that Mauldin was in cofirt on the afternoon of Friday, when the court announced that the testimony was closed, and that nothing more would be allowed except the summing up of counsel of the parties and the charge to the jury, and an adjournment was taken to Monday for those purposes only. It appeared further that Mauldin was not present on Monday until after the argument of the counsel for his corporation was closed, and that he left before the charge. He did not return to hear the verdict, nor was he in attendance at any of the final proceedings. So it is clear from the testimony,, therefore, that Mauldin was quite correct when he says that his attendance was solely for the purpose of testifying in that case, and he seems to have had no other reason for his being present. He did not have charge of the case, and no reason appears why he should have remained after the evidence was closed. He stands, therefore, upon the same footing as any other witness. It is quite clear that a nonresident who comes voluntarily into this state as a witness in an action in our courts is entitled to the privilege of not having a summons served upon him while he is in attendance at the trial, and for a reasonable time thereafter to enable him to go home. As is said in the case of Clark v. Grant, 2 Wend. 257 , the privilege lasts during the hearing, and a reasonable time afterwards to enable the party to return to his residence. In the case of Chaffee v. Jones (Mass.) 19 Pick. 260 , it was held that one who went out of the direct route to his home for the purpose of attending the funeral of his son forfeited his privilege, and the service upon him was held good. The whole matter is considered in Re Healey, 53 Vt. 694 , and the notes to that case, which are found in 38 Am. Rep. 717 et seq.; and the conclusion to be reached

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from those notes is that, while this privilege undoubtedly exists during the time necessary for the performance of the duty which brought the party into the state, it does not last for any longer time than is necessary to enable him to accomplish what he came to the state ■for, and go back to his home with reasonable expedition. The fact that he was the president of the corporation does not create any presumption of itself that he had any management of the suit, or that there was any reason why he should remain here after his duty as a witness had been performed, and he makes no suggestion of the kind. We cannot say, in view of these facts, that the court erred in concluding that," being here solely as a witness, there was no occasion for Mm to remain after the testimony was closed, and he forfeited his privilege by thus remaining.

The order must therefore be affirmed, with $10 costs and disbursements. All concur.