Lamkin v. Starkey — 14 N.Y. Sup. Ct. 479

Majority

p. 479

JOHN M. LAMKIN, Appellant, v. JOHN B. STARKEY, Respondent.

Headnote

Service of summons —protection of witnesses against— 2 JR. S., 402, § 51, et seq.

The court has power, independently of the statute, to protect its officers, suitors and witnesses from molestation by means of process of the court.

Appeal from an order of the Special Term setting aside the service of the summons as irregular and void, because served upon the defendant while voluntarily in this State for the purpose of attending court a,s a witness.

John Yan Yoorhies, for the appellant.

J. A. Shell, for the respondent.

The order made in this ease is in excess of the privilege granted to witnesses by the statute. (2 R. S., 402, § 51, et seq.) But the .court has power, independently of the statute, to protect its suitors, officers and witnesses. Such protection is afforded for the sake of public justice. By the common law parties to a suit, and their attorneys and witnesses, were protected from arrest in coming to, attending upon and returning from the courts. (Tidd’s Pr., 195.)

p. 480

The same reasons wliicli induced the protection from arrest, require that witnesses, at least, shall be protected against molestation, by-means of the process of the court, in any form. For this reason we think the practice of extending such protection a good one, and ought to be upheld. (Seaver v. Robinson, 3 Duer, 622 ; Merrill v. George, 23 How. Pr., 331 .)

The .order is affirmed, with ten dollars costs and disbursements.

Smith, J., concurred.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed, with ten dollars costs and disbursements.