Hollender v. Hall — 33 N.Y. St. Rep. 848

Majority

p. 848

John H. Hollender, App’lt, v. Henry C. Hall, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

1. Residence.

Defendant went to Matanzas, in Cuba, in 1853, and continued in business there until 1864; he was subsequently in the consular service and resident agent of a canal company in Nicaragua. Held, that his removal and continued residence abroad deprived him of residence in this state and made him a resident of Matanzas, and that this was not affected by his claim to be a citizen of this state, based on the fact that he made his headquarters in Poughkeepsie when he happened to be in this state.

2. Seevtce—Exemption oe witness ebom.

A non-resident who comes into the state for the purpose of giving evidence as a witness is not liable to be interfered with by the service of legal process upon him.

Appeal from an order setting aside the service of a summons.

Robert D. Benedict, for app’lt; Charles P. Paly, for resp’t.

The defendant has sworn that he went to Matanzas, in the Island of Cuba, and there established his residence, and engaged in mercantile business in 1853, and continued in that business until 1864. And that has in no way been contradicted. That deprived him of his residence in this state' and made him a resident of Matanzas. After that he was in the consular and foreign service of the United States until March, 1889, and then he went to Managna, in Nicaragua, as resident agent of a maritime canal company, and still holds that position, lie did not, therefore, resume his residence in the United States after he surrendered it ánd went into business in Matanzas in 1853. And his answer to the question whether he had any residence in the United States, in which he replied, Well, I can’t say that I have; I have just at present, Poughkeepsie, probably, and his further answer that he still claimed to be a citizen of the state of

p. 849

Hew York, did not change the effect of this continued residence abroad. This is especially so in view of the explanation given by him that he made that city his headquarters and was there only when he happened to be within this state.

He came here as a witness to give his testimony as a witness in an action pending in this state at the time when he was served with the summons in this action, and intended to depart, as he did, again, after his deposition was taken. As he was not a. resident of the state, but came into it for the purpose of giving his evidence, this service of the summons upon him was irregular. It has been the policy of the law, as it has been administered by the courts of this state, to induce witnesses personally to attend here from abroad to give their evidence. It is an advantage to the parties to legal controversies, as well as the tribunals charged with the duty of settling such controversies. And when a person does attend as such witness, he is not liable to be interfered with by the service of legal process upon him. The principle to that effect has become so well settled as no longer to be open to question. Frisbie v. Young, 11 Hun, 474 ; Lamkin v. Starkey, 7 id., 479 ; Merrill v. George, 23 How., 332 ; Person v. Grier, 66 N. Y., 124 ; Matthews v. Tufts, 87 id., 568. The defendant was entitled to the benefit of this principle when the service of the summons was made upon him.

It was rightly set aside, therefore, and the order should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concur.