Sizer v. Hampton & Branchville Railroad & Lumber Co.

68 N.Y.S. 232 | N.Y. App. Div. | 1901

Rumsey, J.:

On the 26th of October, 1900, the summons in this action was served on one Mauldin, who seems to be the president and treasurer of the defendant corporation. He moves to set aside the service upon the ground that he is a non-resident of this State and that the defendant is a foreign corporation, and that service was made upon him while he was within the State, for the sole reason that he was in attendance as a witness in behalf of his company in a suit tried in . the City Court of the city of New York. That suit was one in which his company was plaintiff and the plaintiff here was defendant, but Mauldin does not claim that he was in charge of the case or that he had any connection with it except as a necessary witness.

It appears from the affidavits of the plaintiff that the trial of the case in which Mauldin was a witness was begun on Friday, the nineteenth of October; that all the testimony was concluded on that day shortly before four o’clock; that the case was adjourned for the summing up and the charge to the jury until Monday, the twenty-second of October; that Mauldin was in court on the afternoon of Friday when the court announced that the testimony was closed, and that nothing more would be allowed except the summing up of counsel of the parties and the charge to the jury, and an adjournment was taken to Monday for those purposes only. It appeared further that Mauldin was not present on Monday until after the argument of the counsel for his corporation was closed, and that he left before the charge. He did not return to hear the verdict nor was he in attendance at any of the final proceedings.

So it is clear from the testimony, therefore, that Mauldin was quite correct when he says that his attendance was solely for the purpose of testifying in that case, and he seems to have had no other reason for his being present; he did not have charge of the case, and no reason appears why he should have remained- after the evidence was closed. ITe stands, therefore^ upon the same footing as-, any other witness. It is quite clear that a non-resident who comes-voluntarily into this State as a witness in an action in our courts is-entitled to the privilege of not- having a summons -served upon him while he is in attendance at the trial and for á reasonable time ther'e-' after to enable him to go home. As is said in the case of Clark v. Grant (2 Wend. 257), the privilege lasts during the hearing and a reasonable time afterwards to enable the party to return to his residence. In the case of Chaffee v. Jones (19 Pick. 260) it was. held that one who went out of the direct route to his home for the purpose of attending the funeral of his son forfeited his privilege and the service upon him was held good. The whole matter is considered in Matter of Healey (53 Vt. 694) and the notes to that case, which are found in 38 American Reports, 717 et- seq., and the conclusion to be reached from those notes is that, while this privilege undoubtedly exists during the time necessary for the perform- ' anee of the duty which brought the party into the State, it does not last for any longer time than is necessary to enable him to accomplish what he came to' the State for apd go back to his home- with. reasonable expedition. The fact that he was the president of the corporation does not create any presumption of itself that he had any management of the suit or that there was any reason why he should remain here after his duty as a witness had been performed,, and he makes no suggestion of the kind. Wé cannot say, in view of these facts, that the court erred in concluding that, being here solely as a witness, there was no occasion for him to remain after the testimony was closed,- and he forfeited his privilege by thus remaining.

The order must, therefore, be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ.,. concurred.

Order affirmed, with ten dollars costs and disbursements;