Parker v. Marco — 49 N.Y. St. Rep. 905

Majority

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James H. Parker, Resp’t, v. Manuel Marco, App’lt.^[1]

(Court of Appeals,

Filed January 17, 1893.)

Headnote

Service—Privilege from.

The privilege of a suitor or witness to be exempt from service of process while without the jurisdiction of his residence in an action to which he is a party or in which he is to be sworn as a witness extends to a nonresident defendant, who, at the instance of the plaintiff, comes to this state to attend the taking of the testimony before a notary public of plaintiff and his witnesses, to be used at the trial of the action in the federal courts in defendant’s state, and although such examination is abandoned by plaintiff’s attorney the service upon defendant while returning of a summons in an action brought by plaintiff in the supreme court of this state for the same cause is void.

(Gray, J., dissents.)

Appeal from judgment of the supreme court, general term, first department, reversing order setting aside service of summons. John B. Abney, for app’lt; T. Henry Dewey, for resp’t.

The defendant is a resident of South Carolina and an action had been there brought against him in the federal circuit court by the plaintiff, who is a resident of this state. On April 6, J892, the defendant came to the city of Mew York at the instance of the plaintiff to attend an examination of' the plaintiff and his witnesses before a notary public, which by the agreement of the counsel for the respective parties had been set down for that date. The plaintiff procured the defendant’s assent to the examination upon the statement that he desired to be in readiness to try the cause at the ensuing April circuit, to be held at the city of Charleston. When the time for taking the testimony arrived the defendant was informed by plaintiff’s counsel that he had abandoned his intention to take the evidence as proposed, for the reason that on account of sickness in his, the counsel’s family, the plaintiff would not be prepared to go to trial at the April circuit, and he expected to be able to produce his witnesses in court when the trial should take place at a subsequent term. It was then late in the afternoon, and. the defendant returned to his hotel and remained over night, and the next morning started for his home in South Carolina. He was intercepted at the ferry by a process server, who served him with a summons in an action brought by the plaintiff in the supreme court of this state for the same cause of action at issue in the federal court in South Carolina. The defendant had no business in Mew York except that which related to the proposed examination. The defendant has appealed from an order of the general term, reversing an order of the special term, which set aside the service of the summons upon the ground that, when served, he was privileged from service.

Under § 863 of the Revised Statutes of the United States the plaintiff had an absolute right to take the testimony of his witnesses in this state to be used upon the trial of the action in South Carolina upon giving reasonable notice to the defendant The

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compulsory character of the proceeding was not affected by the waiver of notice and the fixing of the time by the agreement of parties. Plimpton v. Winslow, 9 Fed. Rep., 365 . The same section provides that a person may be required to appear and testify before the notary in the same manner as witnesses in open court, and § 915 of our own Code authorizes any state judge to issue a subpoena to compel the attendance of a witness in such a case. In the trial of the action the notary thus becomes the arm of the court, and, as was held in In re Rindskopf 24 Fed. Rep., 542 , represents the court pro hac vice.

The privilege of a suitor or witness to be exempt from service of process while without the jurisdiction of his residence for the purpose of attending court in an action to which he is a party or J in which he is to be sworn as a witness is a very ancient one. Year Book, 13 Hen. IV, I. B. Viner’s Abr. “Privilege.”

It has always been held to extend to every proceeding of a judicial nature taken in or emanating from a duly constituted tribunal which directly relates to the trial of the issues involved. It is not simply a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity and in order to promote the due and efficient administration of justice. Persons. Grier, 66 N. Y, 124 ; Mat t hews v. Tufts, 87 id., 568. At common law a writ of privilege or protection would be granted to the party or witness by the court ■ in which the action was pending, which would be respected by all other courts. We cannot find that the power to issue such a wrrit has been abrogated by legislation, and it doubtless exists, and the writ may still be granted by courts possessing a common law jurisdiction ; but while the granting of the writ is proper, it is not necessary for the enjoyment of the privilege, and the only office which it can perform is to afford “ convenient and authentic notice to those about to do what would be a violation of the privilege, and to set it forth and command due respect to it.” Bridges v. Sheldon, 7 Fed. Rep., 44 . The tendency has been not to restrict but to enlarge the right of privilege so as to afford full protection to parties and witnesses from all forms of civil process during their attendance at court and for a reasonable time in going and returning. Larned v. Griffin, 12 Fed. Rep., 592 .

Hearings before arbitrators, legislative committees, registers and commissioners in bankruptcy, and examiners and commissioners to take depositions, have all been declared to be embraced within the scope of its application. Bacon’s Abr. “ Privilege;” Sandford v. Chase, 3 Cow., 381 ; Matthews v. Tufts, supra; Hollender v. Hall, 18 Civ. Pro., 394; 19 id., 292; Thorp v. Adams, Id. 351; Bridges v. Sheldon; Plimpton v. Winslow, and Lamed v. Griffin, supra. It has even been extended to a suitor returning from an appointment with his solicitor for the purpose of inspecting a paper in his adversary’s possession in preparation for an examination before a master, Sidgier v. Birch, 9 Ves., 69, and while attending at the registrar’s office with his solicitor to settle the terms of a decree, Newton v. Askew, 6 Hare, 319; and while attending from another statp to hear an argument in his own casein

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the court of appeals. Vincent v. Watson, 1 Rich. L., 197. No good reason can be perceived why the privilege should not be extended to a party appearing upon the examination of his adversary’s witnesses, where the testimony is taken pursuant to the authority of law, and can be read upon the trial with the same force and effect as if it had been taken in open court. It is a proceeding in the cause which materially affects his rights, and the necessity for his attendance is quite as urgent as it would be if the examination was had at the trial. But we do not think that the question of the necessity of his presence is material. It is the right of the party, as well as his privilege, to be present whenever evidence is to be taken in the action which may be used for the purpose of affecting its final determination. It is essentially a part of the trial, and should be so regarded so far as it may be necessary for the protection of the suitor. There have been many analogous cases in the Federal courts where the right to the privilege has been upheld. In Bridges v. Sheldon, supra, the action was pending in the U. S. circuit for Vermont. A reference had been ordered to a master to take and state an account. The master, on motion of the plaintiff, had made an order for the taking of a deposition before a commissioner in the state of Iowa. The defendant, while attending before the commissioner in Iowa, was served with process in a suit brought by the plaintiff for the same cause of action as in the Federal court. Judge Wheeler, in very strong terms, condemned the procedure and held that the defendant was absolutely privileged from service, and that the conduct of the plaintiff in causing such service to be made was a contempt of court, and could be punished as such. It seems that in such a case the party has a two-fold remedy. He may move in the court whose privilege has been violated to punish the party in that court who has been guilty of such violation, or he may move in the court out of which the process has been improperly issued to vacate it, and the motion will be granted.

In Plimpton v. Winslow, supra, the suit was pending in the United States circuit for Massachusetts. By agreement of counsel testimony was taken before a special examiner in New York city, and while defendant was attending before the examiner he was sued by the plaintiff in the United States circuit for New York. Judge Blatchford set aside the service, saying: “ It is very clear that the motion must be granted. The defendant attended as a party before the examiner. The regularity of the examination was recognized by the attendance of the plaintiff. The defendant had a right to attend upon it in person, whether he was to be himself examined as a witness before Mr. Thompson or not, and he had a right to be protected, while attending upon it, from the service of the papers which were served in this suit. He attended in good faith. The privilege violated was a privilege of the Massachusetts court, and one to be liberally construed for the due administration of justice.”

In Larned v. Griffin, supra, the defendant was in Massachusetts attending upon the taking of a desposition under a commission

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issued out of the superior court of Cook county, Illinois, and was arrested upon civil process in an action brought in a state court of Massachusetts, which was afterwards removed into the United States circuit court. Judge Colt sustained a plea in abatement on the ground that the defendant was exempt from process. In Hollender v. Hall, supra, the witness was attending, pursuant to a stipulation, before a notary public, to have his deposition taken in an action pending in the United States district court for the southern district of New York, and the special term set aside the service of process upon him, and its decision was affirmed by the general term of the first department. A distinction is sought to be made between that case and the one at bar, because there the court in which the action was pending existed within the J limits of this state, while here it is a court sitting in another state. There does not appear to be any sound principle upon which such discrimination can rest. A federal court exercising its jurisdiction in another state has the same privileges and can afford to its suitors the same immunities as a like court sitting in this state. Both exist by virtue of the federal constitution and laws, which are supreme everywhere, and when taking testimony out of court in this state both are proceeding under the same act of the congress. A party who is brought here in such a proceeding is, we think, entitled to the same protection without regard' to the local jurisdiction of the court in which the action is pending.

It may be assumed that the plaintiff acted in entire good faith, and that his procedure was not a device to secure the presence of the defendant within the territorial jurisdiction of the courts of this state. In the view we take of the privileges of the defendant, the plaintiff’s motive is of no importance.

The order of the general term must be reversed, and the order of the special term affirmed, with costs.

All concur, except (Tray, J., dissenting.