Parker v. Marco — 41 N.Y. St. Rep. 302

Majority

p. 302

James H. Parker, App'lt, v. Manuel Marco, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 13, 1891.)

Headnote

Service—Exemption prom. '

The rule exempting parties and witnesses who come from foreign states into this state for the purpose of a trial here from service of process applies only where the proceedings are in court, and has no application to-the case of a party living in a foreign state and having a litigation pending therein who attends in this state for the purpose of taking testimony out. of court.

Appeal from order setting aside service of summons.

T. H. Dewey, for app’lt; J. R. Abney, for resp’t.

It appears that the plaintiff in this case-resides in the city of New York and the defendant in South Carolina.

At the time of the service of the summons in this action, set ting aside which the order appealed from was made, there was an action pending between the same parties in the circuit court of the United States for the district of South Carolina, and it having been agreed that certain testimony should be taken in the city of Mew York before a notary public, the defendant came to the place where such testimony was to be taken on the 6th of April, in the afternoon, and on the 7th of April the summons in this action was served upon him. A motion was thereupon made to-set aside the service, upon the ground that the defendant was exempt from service, he being in the state for the sole purpose of taking testimony before a notary public in another action to-which he was a party.

In support of this proposition, our attention is called by the counsel for the respondent to several cases, among which are the cases of Matthews v. Tufts, 87 N. Y., 568 , and Person v. Grier, 66 N. Y., 124 .

Mone of the cases cited however, presents the question now before the court. Mor does the rule recognized in those cases-have any application to the facts appearing in the case at bar. The reason' why parties and witnesses who come from foreign states into this state for the purpose of attending a trial here are-exempted from service of process, is that their presence is necessary for the due administration of justice and that 'without such exemption their attendance might not be readily obtained.

In the case of Person v. Grier, the court say: “It is the policy of the law to protect suitors and witnesses from arrest upon civil process while coming to and attending court and returning home. This immunity is one of the necessities of the administration of justice and courts would often be embarrassed if suitors or witnesses while attending court could be molested with process. Witnesses might be deterred and parties prevented from attending, and delays might ensue and injustice be done.”

And in the case of Matthews v. Tufts, the court say: This immunity does not depend upon the statutory provisions but is deemed necessary for the due administration of justice.

p. 303

In that case the party was attending as a creditor before a commissioner, in bankruptcy in this state, and the court held that commissioners in bankruptcy are a court of justice sufficient for the purpose of having the witness protected by the court of chancery at least, if not by themselves. They sit in the nature of a court in the administration of justice in proceedings in bankruptcy, and the due administration of justice requires that all creditors should be free to attend without interference by service of process 'of any kind.

Thus it is seen that the object of the rule is to allow parties and witnesses to be present where their attendance is necessary upon the trial of causes within this state; and this rule has obtained •because it was in furtherance of justice. It has no application to the case of a party living in a foreign state, having a litigation pending in a foreign state, who attends in this state for the purpose of taking testimony out of court. The proceedings must be in court, and it is for the protection of the administration of justice that the rule has obtained

We think, therefore, that the coming into this state for the purpose of being present upon the taking of testimony to be used in an action in another state neither comes within the spirit nor the letter of the rule to which attention has been called, and- that the defendant was liable to service of process, and the service of the summons herein should not have been set aside.

The order appealed from should be reversed, with ten dollars -costs and disbursements.

Daniels and Ingraham, JJ., concur.