26 N.Y.S. 329 | N.Y. Sup. Ct. | 1893
It is well settled that a nonresident of the state, while here in attendance upon a court as a party or a witness, cannot be arrested, or served with a process in a civil action. Parker v. Marco, 136 N. Y. 585, 32 N. E. 989; Matthews v. Tufts, 87 N. Y. 568; Person v. Grier, 66 N. Y. 124. There are cases, however, holding that a resident of the state attending as a party or a witness in a county other than that in which he lives is not exempt from the
“Whether any distinction should or does in fact exist is at least doubtful'.. 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.”
See, also, Thorp v. Adams, (Sup.) 11 N. Y. Supp. 479.
Within the principle stated in Person v. Grier, supra, we think that a party attending an action on trial at a circuit in a county outside of his residence is exempt from the service of process in a justice’s court action in the latter county. See Pritsch v. Schlicht, 5 N. Y. St. Rep. 871; Miles v. McCullough, 1 Bin. 77. We also think that the writ of prohibition was properly issued. The relator had no other adequate remedy. He could not properly move before the justice to set aside the service of the summons. Unless'the writ had been issued, defendant would have -been compelled to proceed with the trial before the justice. See Fiero, Spec. Proc. 89-94, and cases cited. Appo v. People, 20 N. Y. 540. The order should be affirmed, with costs. All concur.