7 Daly 523 | New York Court of Common Pleas | 1878
Defendant, while attending from the State of New Hampshire before the United States District Court for the Southern District of New York, in November, 1874, in an action then on trial, was served with a summons in the present action issued for and upon a money demand upon contract made by the intestate Joseph M. Thompson. ' Whatever may have been the variant decisions of the courts of record of this State in the exercise of their primary or original jurisdiction, it cannotbe questioned by this court but that the Court of Appeals, in Person v. Grier (66 N. Y. 124), has established as a general principle of law that the resident of a foreign State cannot be served with process for the commencement of an action against him while attending in this as a witness before one of the courts held herein. The special consideration upon .which the plaintiff seeks to sustain his right to enforce his action, notwithstanding such decision, is, that his claim is barred in New Hampshire by the Statute of Limitations of that State. As I understand the force and effect of the decision of the Court of Appeals, the privilege thus extended to one so attending as a witness is personal in exempting him from the jurisdiction of the foreign court, and I am unable to appreciate any distinction in this respect, whether the claim be one made against him in his private right, or as trustee, administrator, br executor, and without regard to the character of his defense. The matters presented in the additional affidavits read on this appeal, and which by consent are to be regarded in like-manner as subjects of consideration after adverse decision as if heard on appeal, present no phase of equitable cognizance of the action not embraced within the general exposition of the law as announced by the Court of Appeals. Fraud, in avoidance of the just and equitable jurisdiction of a court of this State, would certainly be ground for questioning the general séope and terms of the decision of the Court of Appeals. But none such is shown in the present case upon the supplementary affidavits, and in consideration of the decision of that court the order appealed from should be reversed with costs. The order hereon being made in obedience to the decision of
Charles P. Daly, Ch. J., and Joseph F. Daly, J., concurred.
Older reversed with costs.
