4 N.Y.2d 494 | NY | 1958
The Appellate Division, reversing Special Term on the law, denied defendant’s motion to set aside the service on him of the summons in this case and certified to us a question as to whether defendant was immune from such service at the time it was made.
'Special Term granted the motion and set aside the service, holding that defendant Was entitled to immunity because he had Voluntarily come into the State, remained here and returned here. The Appellate Division, however, was of the opinion that New
It is an ancient rule in most States including New York that a suitor in attendance in a court outside the territorial jurisdiction of his residence is immune from service of civil process while attending court and for a reasonable time before and after, that is, going to court and returning to his home (Person v. Grier, 66 N. Y. 124,125-126; Matthews v. Tufts, 87 N. Y. 568, and cases listed therein, at p. 570; Parker v. Marco, 136 N. Y. 585; Chase Nat. Bank v. Turner, 269 N. Y. 397). The purpose of the rule “ is to encourage voluntary attendance upon courts and to expedite the administration of justice ” (Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 380). It follows reasonably and logically that there is no such immunity for one who has been “ brought into the jurisdiction of a court while under arrest or other compulsion of law” (Netograph opinion, supra, p. 380). “ Such a suitor or witness does nothing to encourage or promote voluntary submission to judicial proceedings ” (Netograph opinion, supra, p. 380). But neither this exception nor its reason applies to the case of this defendant Fabel who, learning that he had been indicted, traveled up to New York from his North Carolina home without arrest or process or other compulsion. His appearance in New York was in fact and in law voluntary. We should, therefore, on authority and principle, apply to him the immunity privilege and not the exception applicable in cases of compulsion only.
It should be sufficient ground for reversal that this case comes within the spirit and terms of the common-law immunity rule
The reason and history of section 855 persuades us that no effort should be made to stretch it to cover this case. While taken over from the Uniform Extradition Act it is actually a codification of old New York case law. The denial of immunity from civil process to one brought into this State by compulsion to answer criminal charges was by our decisions made subject to an exception. The exception existed ‘£ where the debtor has
We do not think that Fabel’s voluntary return to plead to the indictment became involuntary because he Avas on bail between the time of that plea and the trial (see Kreiger v. Kreiger, 7 Misc 2d 595, affd. 272 App. Div. 880; Bunce v. Humphrey, 214 N. Y. 21).
The order appealed from should be reversed, the certified question answered in the affirmative, and the motion to set aside the service of the summons granted, with costs in this court and in the Appellate Division.
Order reversed and matter remitted for further proceedings in accordance with the opinion herein, with costs in this court and in the Appellate Division. Question certified answered in the affirmative.