was in this city in attendance at the trial of the separation suit. It appears, however, that in July last the defendant secured a change of venue in the action for a separation from Orange county to New York county on the ground that his wife was a resi dent of this county, based upon his claim that her residence followed his, which had always been in this county. It is also shown that he was a witness upon the trial of that action, and testified, with respect to his residence, that he was greatly in debt; that he had been staying in New Jersey for the sole purpose of avoiding his creditors, and that for that reason he did not go to his residence in New York City, except upon Sundays and legal holidays, and occasionally on week days; that such had been his habit up to the commencement of the said action for a separation, but that he had regarded, and still did regard, and claimed, his apartments at No. 124 West Ninety-First street, in EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS, -Continued. courts of this state upon the question of whether or not a resident witness or party coming into the jurisdiction of a court of limited territorial jurisdiction from another part of the state, where he resides, for the purpose of attending court, is exempt from service of process of such court, but under Parker v. Marco, 136. Y. 585; 32 N. E. 989; it would appear that such exemption plainly exists, and the following court decisions uphold the privilege:

Pritsch v. Schlicht, 5 St. Rep. 871.

Sebring v. Stryker, 10 Misc. 289; 63 St. Rep. 243; 30 Supp. 1053; 24 Civ. Pro. 126.

People v. Flansburgh, 55 St. Rep. 872; 26 Supp. 329.

Thus a person going into the jurisdiction of the city court of Brooklyn for the purpose of testifying in a criminal trial therein, who is not a resident of that city, cannot be served with summons in that court.

Pritsch v. Schlicht, 5 St. Rep. 871.

But, of course, the privilege cannot be claimed by one who could have been served at home as well as where the court was held.

Sheldon v. Wakely, 3 Law Bull. 94.

People v. Flansburgh, 55 St. Rep. 872; 26 Supp. 329.

A person asserting the privilege must show clearly that he came from without the jurisdiction solely for the purpose of attending the trial. Day v. Harris, 37 St. Rep. 322; 14 Supp. 3; 20 Civ. Pro. 255. Sander v. Harris, 37 St. Rep. 594; 14 Supp. 37; 20 Civ. Pro. 258. Thus an affidavit of a non-resident which states that he came to the town

this city, as his proper and legal residence, and that he had paid the rent for the same. The service of the summons in this action was made on November 13, 1899, prior to the giving of the above testimony. It appears that the cause was on the day cal endar of the special term for the first time on Friday, November 10th, being the twenty-second case thereon. It again appeared on said calendar as the seventeenth case on the following Monday, which was the day on which the summons herein was served. The defendant swears that on Saturday, the 11th, he voluntarily came from the state of New Jersey into this state for the sole purpose of attending as a party and a witness at the trial of said action for a separation, and with intention of returning to his "said actual temporary residence and home in the state of New Jersey" immediately upon the completion of said trial. The

EXEMPTION OF Parties and WITNESSES FROM SERVICE OF PROCESS,-Continued. "for sole and only purpose of appearing as a witness in a criminal action which had previously been commenced against him by his arrest," does not establish the privilege, as such allegation does not necessarily prove that he came directly from without the jurisdiction of the court (Justice's) to attend the trial.

Day v. Harris, 37 St. Rep. 332; 14 Supp. 3; 20 Civ. Pro. 255.

The fact that the claim upon which it is sought to institute action against a non-resident witness or party, cannot be enforced in the state in which he resides because of the statute of limitations, does not affect the application of the privilege.

Grafton v. Weeks, 7 Daly, 523.

2. Parties.

According to the earlier decisions, a suitor while in attendance at court was only exempt from arrest in a civil action or special proceeding, and other process therein might be served upon him.

Hopkins v. Coburn, 1 Wend. 292.

Pollard v. Union Pacific R. R. Co., 7 Abb. Pr. (N. S.) 70.

Jenkins v. Smith, 57 How. Pr. 171.

But the later cases have extended exemption from all process to parties residing outside the jurisdiction of the court in which the action is pending. Person v. Grier, 66 N. Y. 124.

Matthews v. Tufts, 87 N. Y. 568.

Tribune Association v. Sleeman, 12 Civ. Pro. 20; 8 St. Rep. 343.

Michaels v. Hain, 78 Hun, 500; 61 St. Rep. 234; 29 Supp. 567.

cause was not reached on the 13th, nor until some nine days thereafter, when it was finally called, and the trial proceeded. On the 13th, when the service complained of was made, the de fendant had not been in attendance at the court room, but was found at half past 7 in the evening at the Everett House, in this city, writing a letter, at which hour and place the service was made. It seems from the affidavit of one Hunt, who was present at the time of the service, that on that occasion he was told by the defendant, and afterwards by the private secretary of the lat ter, that, pending the trial of said action, and the preparation for the same, he (the defendant) had not been spending his nights in New York, but had been going back and forth from New Jersey; that this had been done by the advice of counsel, who feared service of process upon him; and that he was in the habit of going to New York in the afternoons to advise with EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS,-continued. Marks v. La Société Anonyme de L. Union des Papeteries, 46 St. Rep. 660; 19 Supp. 470; 22 Civ. Pro. 201.

People v. Flansburgh, 55 St. Rep. 872; 26 Supp. 329.

A non-resident of this state, in attendance therein before a register in bankruptcy, for the purpose of proving claims against a bankrupt in favor of himself and others and assisting in the selection of an assignee, is exempt from the service of a summons.

Matthews v. Tufts, 87 N. Y. 568.

Where a non-resident of this state, and a defendant in an action pending in the United States circuit court held in his state, came here at the plaintiff's instance, on a day agreed, for the purposes of attending an examination of plaintiff and his witnesses before a notary public, but late in the afternoon was informed that plaintiff had abandoned his intention to take the evidence as proposed, service of a summons in another action upon him while on his way home the next morning will be set aside because of exemption from such service.

Parker v. Marco, 136 N. Y. 585; 32 N. E. 989.

A person brought to this state on a criminal charge is not exempt from service of process in a civil action or proceeding while in custody or after his release, where the person in whose behalf such service was made was not connected with the instigation of the criminal proceedings.

Williams v. Bacon, 10 Wend. 636.

Slade v. Joseph, 5 Daly, 187.

Adriance v. Lagrave, 59 N. Y. 110.

counsel, and thereafter immediately returning to New Jersey. This substantially portrays and characterizes the situation of the defendant, a resident of this city, tenaciously clinging to his residence here, and all the rights flowing from it, but temporarily sojourning in the state of New Jersey for the sole purpose of placing himself beyond the reach of his creditors and the proc ess of the courts in this state. The law is undoubtedly well settled that where a nonresident of the state voluntarily comes within it for the purpose of giving testimony in an action or proceeding pending therein, or, if he be a party, for the purpose of attending the trial or some proceeding in the matter, he cannot be served with process here while coming into the jurisdiction, while he remains in attendance upon the court, or while return. ing to his place of residence, provided he returns with reasonable dispatch after the occasion for which he came has been fulfilled Person v. Grier, 66 N. Y. 124; Matthews v. Tufts, 87 N. Y.

EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS, -Continued.

Bank of the Metropolis v. White, 26 Misc. 504; 91 St. Rep. 460; 57 Supp. 460.

And it has been held that service may be made in such case, even though it is made in behalf of a person who instigated the criminal proceedings, if in so doing the latter was not guilty of a wrongful act.

Martin v. Woodhall, 56 Super. 439; 21 St. Rep. 465; 4 Supp. 539.

But where a non-resident comes into this state simply to answer a criminal charge, he is entitled to immunity from service of process while awaiting examination under a bail bond conditioned for his appearance at any time when called on, the examination having been postponed on account of the inability of the complaining witness to attend. Murphy v. Sweezy, 2 Supp. 241.

3. Witnesses.

The fact that a witness attends court voluntarily instead of pursuant to subpoena does not deprive him of his exemption from service of process. Brett v. Brown, 13 Abb. Pr. (N. S.) 295.

Seaver v. Robinson, 3 Duer, 622.

A person attending as a witness in an investigation proceeding before a committee of the state senate is exempt from service of process.

Thorp v. Adams, 33 St. Rep. 797; 11 Supp. 479; 19 Civ. Pro. 351; aff'g 25 Abb. N. C. 408; 18 Civ. Pro. 279; 11 Supp. 41.

68; Parker v. Marco, 136 N. Y. 585; 32 N. E. 989; 20 L. R. A. 45. It is said in Person v. Grier, supra, that:

"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, or injustice be done."

It will thus be seen that the rule is one founded on considerations of public policy, and, within its own proper limitations, should be liberally construed and applied. It has accordingly been held that a domicil elsewhere was not essential to the privilege. That question was discussed in the case of Thorp v. EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS, -continued. So a non-resident of the state in attendance as a witness before arbitrators cannot be served with process in a civil action or special proceeding. Sanford v. Chase, 3 Cow. 381.

The exemption of a non-resident witness, in attendance upon court in this state, extends to service of process in which he is named as administrator or trustee.

Grafton v. Weeks, 7 Daly, 523.

And a director of a foreign corporation, who came here for the purpose of testifying in an action, cannot be served with a summons in an action against such corporation.

Sheehan v. Bradford, etc., R. R. Co., 3 Supp. 790; 15 Civ. Pro. 429.

In the case of Marks v. La Société Anonyme de L' Union des Papetries, 46 St. Rep. 660; 19 Supp. 470; 22 Civ. Pro. 201, before the general term of the New York Court of Common Pleas, one of the judges followed the decision just preceding, but the other judge took the position that a director of a foreign corporation while in attendance upon court in this state as a witness, may be served with the process named. In that case, however, there was a concurrence in the result, the former judge holding that on the facts a waiver of the exemption had occurred, and the latter reaching the conclusion that the service was proper because the exemption did not exist in favor of that person.

One who is sojourning in another state and who, before the period of his stay there has elapsed, comes to this state for the express purpose of testifying as a witness, cannot be served with process while here for that purpose, notwithstanding his legal place of residence and domicil may be within this

state.

Thorp v. Adams, 33 St. Rep. 797; 11 Supp. 479; 19 Civ. Pro. 351.