Parker v. Marco

• Decision Date: 31 January 1893
• Citation: 136 N.Y. 585,32 N.E. 989
• Parties: PARKER v. MARCO.
• Court: New York Supreme Court

136 N.Y. 585

32 N.E. 989

PARKER

v.MARCO.

Supreme Court, New York County, New York.

January, 1893.

Appeal from an order of the General Term of the Supreme Court, First Department, reversing an order of the Special Term of that court, setting aside the service of a summons.

The action was brought by James H. Parker against Manuel Marco to recover the sum of $10,000. The plaintiff was a resident of the City of New York, and the defendant resided at Charleston, South Carolina.

The summons in the action was personally served upon defendant, while in the City of New York for the purpose of attending the examination of plaintiff and his witnesses before a notary public, under a stipulation in another action between the same parties, brought in the United States circuit court for South Carolina.

The Special Term set aside the service of the summons, upon the ground that the defendant was privileged from the service of process while here for the purpose of attending such examination.

The General Term reversed the order of the Special Term; holding that the rule as to the privilege of parties and witnesses had no application to the case of a party living in a foreign State, having litigation pending there, who comes into this State for the purpose of taking testimony out of court. [Reported in 61 Hun, 519.]

The defendant appealed to this court.

The further facts are fully stated in the opinion.

John R. Abney, for appellant.

I. The defendant was exempt from service, he being in this State for the sole purpose of attending the taking of testimony before a notary public in another action to which he was a party (Citing Year Book, 13 Hen. IV., 1 B.; Viner's Abr., “Privilege,” 510; Bacon's Abr. “Privilege”; Meekins v. Smith, 1 H. Bl. 636; Norris v. Beach, 2 Johns. 294;Bours v. Tuckerman, 7 Id. 538;Hopkins v. Coburn, 1 Wend. 292;Clark v. Grant, 2 Id. 257;Sanford v. Chase, 3 Cowen, 381; Seaver v. Robinson, 3 Duer, 622; Dixon v. Ely, 4 Edw. Ch. 557;Merrill v. George, 23 How. Pr. 331;Person v. Grier, 66 N. Y. 124;Mathews v. Tufts, 87 Id. 568; Thorp v. Adams, 18 Civ. Pro. 279; 19 Id. 351;Hollender v. Hall, 18 Id. 394;19 Id. 292; Juneau v. Sheldon, 7 Fed. Rep. 44; Huddeson v. Prizer, 9 Phil. 65).

II. The U. S. circuit court for South Carolina was entitled to respect; the privilege belonged to it as well as to the defendant (citing, in addition to the above authorities, U. S. R. S. § 863; Code Civ. Pro. § 915; 17 Viner Abr. 517, “Privilege”; Plumpton v. Winslow, 9 Fed. Rep. 365;Larned v. Griffin, 12 Id. 590).

III. Either court could correct the violation of the privilege (citing Bours v. Tuckerman, 7 Johns. R. 538; United States v. Edme, 9 Sar. & R. 147).

T. Henry Dewey, for respondent.--I. Defendant was not exempt. The reason why parties and witnesses who come from foreign States into this State for the purpose of attending the trial of an action here are exempt from service of process, is that their presence in this State is necessary for the due administration of justice, and that without that exemption their attendance might not be readily obtained; the exemption is not designed as a matter of convenience to the persons exempted, nor does it depend on any principle of comity or reciprocity (citing Person v. Grier, 66 N. Y. 124;Matthews v. Tufts, 87 Id. 568;Merrill v. George, 23 How. Pr. 331; Hollender v. Hall, 18 Civ. Pro. R. 394; 19 Id. 292; Thorp v. Adams, Id. 351; Day v. Harris, 20 Id. 255;Sander v. Harris, 20 Id. 285;Grier v. Young, 120 Ill. 184).

MAYNARD, J.

The defendant is a resident of South Carolina, and an action had been there brought against him in the Federal circuit court by the plaintiff, who is a resident of this State. On April 6, 1892, the defendant came to the city of New York at the instance of the plaintiff, to attend an examination of the plaintiff and his witnesses before a notary public, which by the agreement of the counsel for the respective parties had been set down for that date. The plaintiff procured the defendant's assent to the examination upon the statement that he desired to be in readiness to try the cause at the ensuing April circuit, to be held at the city of Charleston. When the time for taking the testimony arrived, the defendant was informed by plaintiff's counsel that he had abandoned his intention to take the evidence as proposed, for the reason that on account of sickness in his, the counsel's family, the plaintiff would not be prepared to go to trial at the April circuit, and he expected to be able to produce his witnesses in court when the trial should take place at a subsequent term. It was then late in the afternoon, and the defendant returned to his hotel and remained over night, and the next morning started for his home in South Carolina. He was intercepted at the ferry by a processserver, who served him with a summons in an action brought by the plaintiff in the supreme court of this State for the same cause of action at issue in the Federal court in South Carolina. The defendant had no business in New York except that which related to the proposed examination. The defendant has appealed from an order of the General Term, reversing an order of the Special Term, which set aside the service of the summons upon the ground that, when served, he was privileged from service.

Under section 863 of the Revised Statutes of the United States the plaintiff had an absolute right to take the testimony of his witnesses in this State to be used upon the trial of the action in South Carolina, upon giving reasonable notice to the defendant. The compulsory character of the proceeding was not affected by the waiver of notice and the fixing of the time by the agreement of parties (Plimpton v. Winslow, 9 Fed. Rep. 365). The same section provides that a person may be required to appear and testify before the notary in the same manner as witnesses in open court, and section 915 of our own Code authorizes any State judge to issue a subpœna to compel the attendance of a witness in such a case. In the trial of the action the notary thus becomes the arm of the court, and, as was held In re Rindskopf (24 Fed. Rep. 542), represents the court pro hac vice.

The privilege of a suitor or witness to be exempt from service of process while without the jurisdiction of his residence for the purpose of attending court in an action to which he is a party, or in which he is to be sworn as a witness, is a very ancient one (Year Book, 13 Hen. IV., I. B. Viner's Abr., “Privilege”).

It 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. It is not simply a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity, and in order to promote the due and efficient administration of justice (Person v. Grier, 66 N. Y. 124;Matthews v. Tufts, 87 Id. 568).

At common law a writ of privilege or protection would be granted to the party or witness by the court in which the action was pending, which would be respected by all other courts. We cannot find that the power to issue such a writ has been abrogated by legislation, and it doubtless exists, and the writ may still be granted by courts possessing a common law jurisdiction; but while the granting of the writ is proper, it is not necessary for the enjoyment of the privilege, and the only office which it can perform is to afford convenient and authentic notice to those about to do what would be a violation of the privilege, and to set it forth and command due respect to it (Bridges v. Sheldon, 7 Fed. Rep. 44). The tendency has been not to restrict but to enlarge the right of privilege so as to afford full protection to parties and witnesses from all forms of civil process during their attendance at court and for a reasonable time in going and returning (Larned v. Griffin, 12 Fed. Rep. 592).

Hearings before arbitrators, legislative committees, registers and commissioners in bankruptcy, and examiners and commissioners to take depositions, have all been declared to be embraced within the scope of its application ( Bacon's Abr. “Privilege”; Sandford v. Chase, 3 Cow. 381; Matthews v. Tufts, supra; Hollender v. Hall, 18 Civ. Pro. R. 394; 19 Id. 292; Thorp v. Adams, Id. 351; Bridges v. Sheldon, Plimpton v. Winslow, and Larned v. Griffin, supra). It has even been extended to a suitor returning from an appointment with his solicitor for the purpose of inspecting a paper in his adversary's possession in preparation for an examination before a master (Sidgier v. Birch, 9 Ves. 69); and while attending at the registrar's office with his solicitor to settle the terms of a decree (Newton v. Askew, 6 Hare, 319); and while attending from another State to hear an argument in his own case, in the court of appeals (Vincent v. Watson, 1 Rich. L. 197). No good reason can be perceived why the privilege should not be extended to a party appearing upon the examination of his adversary's witnesses, where the testimony is taken pursuant to the authority of law, and can be read upon the trial with the same force and effect as if it had been taken in open court. It is a proceeding in the cause which materially affects his rights, and the necessity for his attendance is quite as urgent as it would be if the examination was had at the trial.

But we do not think that the question of the necessity of his presence is material. It is the right of the party, as well as his privilege, to be present whenever evidence is to be taken in the action which may be used for the purpose of affecting its final determination. It is essentially a part of the trial, and should be so regarded so far as it may be necessary for the protection of the suitor. There have been many analogous cases in the Federal courts where the right to the privilege has been upheld. In Bridges v. Sheldon, supra, the action...