276 F. 978 | S.D.N.Y. | 1921
District Judge (after stating the facts as above).
However, the question, though, of course, not one of New York law, depends upon what the New York courts regard as necessary protection to their own prosecutions. Had the respondent here been under indictment in this court, I should have quashed the writ, yet it would be absurd to do so in protection of a criminal prosecution in a New York court, when a subpoena out of a civil court of that state would have stood. The privilege is not the witness’s, but to secure prompt administration in the court in which the first proceeding arises. Hence the first point is not good in the case at bar.
The statute (Rev. St. § 863 [Comp. St. § 14721) cannot, of course, mean that a foreign witness shall be allowed his mileage from the place of his residence, if that be more than 100 miles away because the re-sidí would be preposterous. For example, a witness from England or California would receive $300 mileage, which would be far more than compensation for any actual expenses of traveling, if he were already within the jurisdiction. Indeed, even though a witness has traveled more than 100 miles to the place of trial, the party calling him may only tax mileage for that distance. The statute clearly supposes that witnesses will be subpoenaed at their place of residence, and has not provided for service while they are temporarily within the district. I think that the simple rule is to interpret it in such cases as meaning that they shall have mileage from the place where they are temporarily sojourning. While this conceivably might operate harshly in protracted cases, it must be a rare one in which they will be caught and held here long. And in any case a witness from within the district may be obliged to subsist himself for days at the attendance charge of $1.50. His mileage covers only the actual traveling expenses.
The motion is granted.
Fed. Cas. No. 13,619.