167 Misc. 605 | City of New York Municipal Court | 1938
Defendant appears specially for the purpose of moving, and defendant does move, to vacate and set aside the service of summons in this action upon him, upon the ground that at the time of such service he was immune from service of process.
The summons was served upon defendant as he left the building No. 80 Centre street in New York city, in which is located the office of the Commissioner of Motor Vehicles of the State of New York. On the day in question the defendant had attended a hearing conducted by the Deputy Commissioner of Motor Vehicles pursuant to section 71 of the Vehicle and Traffic Law.
The privilege of a suitor or a witness to be exempt from service of process while without the jurisdiction of his residence has always been held to extend to every proceeding of a judicial nature taken in or emanating from a duly constituted tribunal which directly relates to the trial of the issues involved. (Parker v. Marco, 136 N. Y. 585, 589.) While it has been held that the act of the Deputy Commissioner of Motor Vehicles in suspending or revoking one’s license to drive is an administrative and not a judicial act (Tryon v. Willbank, 234 App. Div. 335, citing People ex rel. Albrecht v. Harnett, 221 id. 487), I do not believe the cases just cited determine the question at bar. It is not the administrative act, as such, of the Commissioner of Motor Vehicles, with which we are concerned. Rather is it the question of whether or not the privilege of exemption from service of process should be extended to a party or a witness in attendance at a hearing not strictly judicial, before a public body conducting an inquiry or investigation of public
In the affidavit submitted in opposition to the pending motion by plaintiff’s attorney, it is alleged, among other things, that he was cautioned by the Deputy Commissioner before whom the hearing was held against service of the summons upon the defendant “ in the hearing room or any part of the building.” Plaintiff’s attorney attempts to justify the service of the summons outside of the building, by repeating statements he claims were made to him by defendant, to the effect that the latter, on the day in question, had other business in New York city than his attendance at the hearing, and that such business required daily visits to that city. These allegations are denied by defendant in his reply affidavit. Prom a study of all of the affidavits submitted herein, it is apparent that defendant’s only business in this city on the day he was served, was for the purpose of attending the hearing in question.
Motion to vacate service of summons granted, with ten dollars costs.