THORP v. ADAMS

THORP v. ADAMS. N. Y. Supreme Court, First District, Chambers; May, 1890. Service of summons on nonresident; privilege of witness.] Defendant, a resident of another State, came into this State on May 15, for the purpose of giving his evidence as a witness before a committee of the senate of this State, then engaged in taking evidence in the city of New York, under a resolution of the senate. The committee did not sit on the 15th, but adjourned to the 19th. Defendant remained here solely because of such adjournment, and as he was leaving the room after testifying before the committee, he was served with the summons. Held, that he was exempt from the service of process while so attending as a witness in this State, and that the service should be set aside. Motion to vacate the service of summons upon the defendant in this action. ' The material facts appear in the opinion. John J. Adams, for defendant and the motion. E. E. Price, for plaintiff, opposed. See Finch v. Galigher, the preceding case. [MAJORITY — Lawrence, J.] Lawrence, J. I cannot distinguish this case from that ■of Matthews v. Tufts, 87 N. Y. 568, in which case the defendant stated in substance that he was a resident of Boston, and came to the city of Hew York for the purpose •of attending at the first meeting of creditors of one Matthews, a bankrupt, the husband of the plaintiff, held there before •a register in bankruptcy, and that the defendant attended said meeting solely as a creditor and witness to prove certain •claims against said bankrupt, and to participate in the choice •of an assignee, and that, while attending as such witness, ■and about fifteen minutes after the meeting had adjourned, the “ summons in this action was served on the defendant.” 'The court of appeals, B,avallo, J., in delivering the opinion, •says : “ This immunity of a defendant and non-resident of the State does not depend upon statutory provisions, but is ■deemed necessary for the due administration of justice, and is not confined to witnesses, but extends to parties as well, •and is abundantly sustained by authority.” In this case the defendant swears that he has resided •since 1886 in the city of Boston, and that he came to this ■State on May 15, 1890, for the purpose of giving his evi- ■ dence as a witness before the committee on cities of the ■senate of the State of New York, which was, and had been for some time previous, taking evidence in the city of New York, under a resolution of that body; that the committee ■ on cities did not sit on Thursday, May 15, but announced that it would sit on Monday, May 19, and that he therefore remained in said city until the meeting of the committee • on the 19th inst., and then attended before it, and gave his ■evidence; that as he was leaving the room in which said ■committee held its session he was served with the summons herein, by a person who had been sitting in the court-room ■during the time that he was giving his evidencethat his ■ sole and only object in remaining until the 19th inst. was, because the committee had adjourned until that date. It is sought in this case to show that, although the residence of the defendant may have been in the city of Boston, his domicile was in the city of New York. It appears from ■the papers that, in consequence of the differences between the defendant and his wife, they' separated from each other «■about the year 1886, and that since that time he has resided in the city of Boston. Under these circumstances it would, seem that the case of Matthews v. Tufts, supra, is directljr in point. There, as already stated, the party served had come on solely as a creditor and witness to prove certain debts and claims against the estate of the bankrupt, and he was served shortly after the adjournment of the meeting at which he had attended. Yet the court held that he was-entitled to his discharge, and set aside the summons. I have read with attention the brief filed on the part of the plaintiff in opposition to this motion, but am constrained to say that I find nothing in it or in the affidavits read which conflicts with the decision in the case of Matthews v. Tufts, supra, and, therefore, the motion to set aside the summons-will be granted, with costs.