Matthews v. . Tufts

Rapallo, J. In Van Lieuw v. Johnson, decided March, 1871, and referred to in Person v. Grier (66 N. Y. 124), a majority of this court were of opinion that .a summons could not be served upon a defendant, a non-resident of the State, while attending a court in this State as a party. This immunity does not depend upon statutory provisions, but is deemed necessary for the due administration of justice. It is not confined to witnesses, but extends to parties as well, and is abundantly sustained by authority. (Cole v. Hawkins, Andr. 275; S. C., 2 Str. 1094; Arching v. Flower, 8 T. R. 534; Miles v. McCullough, 1 Binn. 77; Hayes v. Shields, 2 Yeates, 222; Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Halsey v. Stewart, 1 South. [N. J.] 366; Miller v. Dungan, 8 Vr. [N. J.] 182; In re Healey, 53 Vt. 694.) This exemption from service of civil process has been frequently accorded to creditors attending proceedings in bankruptcy (Ex parte List, 2 Ves. & B. 373; Ex parte King, 7 Ves. Jr. 312), and to a creditor who attended before the commissioners to propose himself as assignee and watch the proceedings. (Selby v. Hills, 8 Bing. 166.) Commissioners in bankruptcy are a court of justice sufficient for the purpose of *571 having their witnesses protected by the Court of Chancery, at least, if not by themselves. They sit in the nature of a court in the administration of justice. (Arding v. Flower, 8 T. R. 534.) In proceedings in bankruptcy the due administration of justice requires that all the creditors should be free to attend, without interference by service of process of any kind. The moving affidavit showed that the defendant caine from Boston where he resides, to ISTew York, and attended the meeting of creditors at the office of the register in bankruptcy, solely as a creditor and witness, to prove certain debts and claims against the estate of the bankrupt, and to participate in the choice of an assignee, and for no other purpose; that while so attending, and while the meeting was being held, or immediately thereafter, before he had time to complete his business as such creditor and witness at such meeting and leave the office, the summons was served upon him. It appears that the defendant did at said meeting present proofs of claims amounting to upwards of $386,000 in his own behalf, and also presented proof of claims of other creditors as their attorney in fact, and voted for the assignee both individually and as attorney for the other creditors whom he represented, and that the proofs of debt had been prepared and verified in Massachusetts. The plaintiff claims that the defendant was not attending as a witness, but only as a creditor, and also, on the hearing of the motion, read affidavits denying the validity ¿ff his claims as a creditor. These claims could not be tried on the motion to set aside the service, and, conceding that the defendant was in attendance only as a party, and as attorney of other parties, we think that he was privileged from service of process or summons while so attending. The order of the General Term should be reversed and that of the Special Term affirmed, with costs. All concur. • Ordered accordingly.