Motion by Max M. Schwartz to vacate subpoena served upon him by the tenant in the above-entitled proceeding, requiring the movant to appear as a witness for the tenant at Special Term, Part I, Kings County.
At the time of service of the subpoena, the sum of fifty cents and no more was paid to movant, who resides more than three miles from the courthouse where his attendance is required. Sections 404 and 1539 of the Civil Practice Act both require payment of the fee and mileage where the place of attendance is more than three miles from the place of residence! In Matter of Depue (185 N. Y. 60, 70), the court held, “ A witness in' an action or special proceeding is entitled to be paid mileage and the statutory per diem. He cannot be compelled to attend without such payment ”, citing section 3318 of the Code of Civil Procedure, now section 1539 of the Civil Practice Act. (See, also, Muscott v. Runge, 27 How. Prac. 85.) The motion is granted.
Settle order on notice.