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Special Term.

[Jan.

Adams (Sup.) 33 St. Rep. 797; 11 N. Y. Supp. 479; 19 Civ. Pro. 351; where the person affected had separated from his wife in New York, and gone to Boston, where he had lived for some years. Coming thence to this city for the purpose of giving testimony before a legislative investigating committee, he was served here with a summons in an action brought against him in this state. Waiving the question as to whether he was still a resident of New York or not, the court said:

"It is enought that, being a resident for the time being of Boston, with the intention of continuing his stay beyond the period when his examination might take place, he came here only for the purpose of appearing as a witness, and with the intention of returning to Roston when that object was accomplished."

There is considerable difference between this case and the one

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

So where a person has resided continuously outside the state for over thirty years he cannot be served with process while in the state for the purpose of testifying in a legal proceeding, and the fact that he had testified in such proceedings that he still claimed to be a resident of this state, does not change the effect of his continued residence abroad.

Hollender v. Hall, 33 St. Rep. 848; 11 Supp. 521; 19 Civ. Pro. 292; Aff'g. 18 Civ. Pro. 394; 13 Supp. 758.

1

But one who comes into the jurisdiction of the court upon private business of his own does not become entitled to claim the exemption because he is subsequently subpoened as a witness.

Cohn v. Kaufmann, Daily Reg. April 30, 1884.

4. Arrest.

The exemption of a witness from arrest in a civil action or special proceeding is granted by §§ 860 and 865 Code of Civil Procedure, which provide as follows: $860. A person duly and in good faith subpoenaed or ordered to attend for the purpose of being examined, in case where his attendance may lawfully be enforced by attachment, or by commitment, is privileged from arrest in a civil action or special proceeding while going to, remaining at, and returing from the place where he is required to attend. § 865. The foregoing provisions of this title, relating to a person required, by an order of a court, to attend, apply, where such an attendance is required by the terms of a judgment.

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at bar, but it is a difference of degree, and not of principle. The defendant here, though a resident, had been sojourning in New Jersey for some months. He came into this state to attend the trial of his cause, and, considering the reasons which prompted him to leave it in the first instance, it may well be believed that he intended to return to his place of refuge as soon as he considered the limit of his privilege had been reached. It certainly seems at first blush to be a startling proposition that a resident can leave the state for the purpose of avoiding the service upon him of process issuing out of its courts at the suit of his creditors, and yet be protected by the state against such service upon EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS, -continued.

A witness attending court voluntarily and not pursuant to subpoena or other order of the court, is not privileged from arrest.

Hardenbrook's Case, 8 Abb. Pr. 416.

Under the Code of Civil Procedure a witness is privileged from arrest although he resides in the place in which his attendance is required.

Scofield v. Kreiser, 61 Hun, 368; 40 St. Rep. 759; 16 Supp. 126; 21 Civ. Pro. 294.

And a person attending court at request of counsel, but who was not subpoenaed for that day is not entitled to the exemption, although he attended on a previous day pursuant to subpœna.

Id.

But according to the common law a witness was exempt from arrest although he attended court voluntarily.

Norris v. Beach, 2 Johns. 294.

A person brought into this state on criminal charge is not entitled to exemption from arrest while in custody nor upon his release.

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

Lucas v. Albee, 1 Denio, 666.

Williams v. Bacon, 10 Wend. 636.
Slade v. Joseph, 5 Daly, 187.

Thus where a person was brought from Massachusetts to this state as a fugitive from justice, but was released here on habeas corpus, his arrest directly thereafter on civil process, was proper.

Williams v. Bacon, 10 Wend. 636.

The rule is the same where the person in custody or recently released came to this state voluntarily and thereafter committed an offense for which he was arrested here.

Lucas v. Albee, 1 Denio, 666.

So a party who has been committed for contempt in violating an injunc VII. N. Y. A. C. 22

Special Term.

[Jan.

his re-entering it for any purpose. If the principle of exemption which we have been discussing were founded merely upon considerations of personal benefit and advantage to the litigant, there would be abundant justification for holding the present case to be an exception to the rule. But, as we have seen, the rule rests upon a broader, and, in a certain sense, upon a different, foundation than mere personal conveninece, and I am not prepared to hold that the defendant was not, up to a certain point, entitled to its protection. That limit, however, was, in my opinion, reached before the time when the summons was served upon him. He had the benefit of his privilege while remaining in the state, so long as the occasion which called for his presence there

EXEMPTION OF Parties and WITNESSES FROM SERVICE OF PROCESS, -Continued.

tion, who is in attendance upon court upon an application for his discharge, which is granted, may be again arrested for the same cause.

Murad v. Thomas, 30 Hun, 82; 66 How. Pr. 100.

b. Forfeiture of privileg

1. Acts before service.

A person, who has attended court as a party or witness, forfeits his right to claim exemption from service of process, by unreasonable delay in returning home.

Woodruff v. Austin, 15 Misc. 450; 72 St. Rep. 172; 37 Supp. 22.

Such forfeiture occurs where a person residing in Boston, came to New York Nov. 7th on which day the case was on the day canendar, but was not then tried, and on the morning of the 14th following he was told by counsel that he would not be needed until the 18th and could go home and return on that day, but instead of so doing he attended to some private business and on the afternoon of the 14th was served with summons.

Woodruff v. Austin, 15 Misc. 450; 72 St. Rep. 172; 37 Supp. 22.

But service will be set aside which was made about 30 minutes after the trial was finished.

Merrill v. George, 23 How. Pr. 331.

The fact that a party to an action, who went to attend the trial, upon learning that the same would not take place, and while preparing to go home merely stopped to announce to the counsel of the opposite party that no steps would be taken, is not such a deviation on his journey as to authorize his arrest.

Salhinger v. Adler, 2 Robt. 704.

A waiver of the exemption occurs where a non-resident came into this

1900]

Cake v. Haight.

required it, and for a reasonable time thereafter in returning to the place from which he came. But what the occasion may require, and what a reasonable time for returning may be, depends very largely upon the particular facts of each case. It is appar ent that the distance of the place of residence from the place of attendance in this state is of considerable importance. What would be permissible where that is remote would not be so where the reverse exists. Where, as was the case here, the cause is on the day calendar, ready for trial, and only awaiting the disposition of those preceding it, a party or witness coming from a place to which it would not be reasonable to expect him to return

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

state to testify upon a trial, which had been concluded before his arrival, and instead of having his testimony taken promptly entered into negotia tions extending over a month, which finally ended in his testimony being taken and service of process upon him when he had been in the state three weeks, is valid.

Marks v. La Société Anoynme de L'Union des Papeteries, 46 St. Rep. 660; 19 Supp. 470; 22 Civ. Pro. 201.

A forfeiture of the privilege likewise takes place, where a party to an action, pending in his state, came here to attend the taking of a deposition for use in such action, but on a certain day expressed his determination to have nothing further to do with the examination and did not return home for two days, during which time a summons was served upon him.

Finch v. Galligher, 12 Supp. 487; 25 Abb. N. C. 404.

So the exemption is lost where a non-resident came to this state as a witness in several actions on the December circuit commencing Dec. 3 and closing Dec. 15th, where, it having been decided not to try the causes, he was remaining there for the next term, which commenced Feb. 25th following, during which interval process was served upon him.

Shults v. Andrews, 54 How. Pr. 380.

In the case last cited it was held that the fact that the person so served was arrested in another action on Dec. 5th and held to bail, did not affect the situation.

But the fact that a witness remained within the jurisdiction two or three hours after the adjournment of the case, but during the time that the court was in session, does not work a forfeiture of the privilege, in the absence of evidence that he knew his attendance was not further required.

Pope v. Negus, 14 Civ. Pro. 406; 3 Supp. 796.

A party to an action, who attended the trial thereof, loses his exemption from arrest by delaying to return to his home in another county for two

[Jan.

Special Term.

as each court day closed would be entitled to remain here continuously until the trial terminated, or his examination was concluded. But it seems to me that the measure of the privilege is different where the place of residence or sojourn is as near as it was in the present case. The defendant resided or was sojourning in an adjacent city, from which thousands come daily into this city for the transaction of their business here, returning in the evening to their homes. It is accessible by ferryboats, which are continually plying between the two places, and is as conveniently situated with respect to the courts as are the middle and

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

days after the close of the trial, during which time he was waiting for the referees to report and engaged with his counsel in preparing papers to set the report aside.

Clark v. Grant, 2 Wend. 257.

But such party does not forfeit his exemption from arrest by waiting for the jury to render its verdict.

Id.

2. Insonsistent acts or delay in asserting privilege after service.

The exemption from service of process of a witness or party who comes from without the jurisdiction to attend a trial, is a personal privilege only, which is waived if not asserted at the first opportunity.

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

Thus, such privilege cannot be claimed for the first time on appeal from a judgment entered upon default.

Id.

A person arrested when privileged, waives his right to assert such exemption where he failed to claim his privilege at the time of arrest and neglected to demand of the county judge, who granted the order of arrest and who was easy of access, his discharge, entered into the usual undertaking and then waited twenty-two days before serving the motion papers for an order directing his discharge.

Farmer v. Robbins, 47 How. Ir. 415.

So, a waiver takes place where the person claiming the exemption did not move for his discharge from arrest until after he had given bail and his sureties, being excepted to, had served notice of justification.

Petrie v. Fitzgerald, 1 Daly, 401.

A witness, upon whom process was served when he was exempt therefrom, is not guilty of such laches as to work a forfeiture of the privilege, where

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