Burnhard v. Rice — 40 N.Y. St. Rep. 570

Majority

p. 570

Charles Burnhard et al., App’lts, v. Ralsa C. Rice, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

Costs—Improper service.

Where service of a summons is set aside on the ground that defendant, a non-resident, was attending as a witness when it was served, it is only the costs of the motion which can he properly awarded against the plaintiff.

Appeal by the plaintiff from that part of an order of special term, setting aside the service of a summons herein, which gave to the defendant the costs of the action besides ten dollars costs of the motion.

J. A. Burnhard, for app’lts; M. A. Geron, for resp’t.

That portion of the order appealed from was clearly unauthorized. The summons was set aside for want of jurisdiction, it being made clearly to appear that the defendant, who was a resident of Ohio, had come within this state solely for the purpose of attending as a witness upon the trial of an action in the supreme court, and was so attending at the time the service in question was made upon him. He made no appearance in the action except for the purpose of the motion to set aside the summons, and in the notice of such motion he asked only for the costs of the motion.

Of course no costs of the action accrued to the defendant. Indeed, upon the very theory of his motion he was never defendant in the action; no action herein was ever commenced against him; the court never acquired jurisdiction of him for the purposes of the action. His appearance was for the purpose of the motion only and it is only costs of the motion which could properly be awarded -against the plaintiff. Ex parte Benson, 6 Cow., 592 ; People ex rel. Mallard v. The Judges of Madison Co., 7 id., 423.

The portion of the order appealed from should be reversed, with ten dollars costs and the disbursements of this appeal.

Macomber and Lewis, JJ., concur.