Finucane v. . Warner

Vann, J. On the 13th of June, 1908, the defendant, formerly a resident of this state, but of late a resident of California, came here for the purpose of attending an Equity Term of the Supreme Court which was to be held on the 22nd of that month at Geneseo, in Livingston county. He alleges that his *162 sole purpose was to be sworn as a witness in bis own behalf in an action to be then tried in which he was the defendant and that he had no other business and came for no other reason. The trial of the action was commenced on the 22nd and ended on the 25th of June, and between those dates, in the presence of his own counsel, the defendant was served with the summons in this action. He remained in this state until Sunday, July 12th, 1908, when he left for California, where he has since remained. He moved to vacate said service as made in violation of his privilege as a witness, on an affidavit made by himself in this state on the 1st of July, 1908, although the notice of motion was not served until the night of July 11th. The motion when heard on the 2ltli of July was denied, and from the order of the Appellate Division affirming the order of the Special Term, two of the justices dissenting, this appeal was taken. In granting leave to appeal the Appellate Division certified the following questions: “ 1. Was the defendant herein privileged and exempt from the service of summons at the time of said service ? “ 2. Did the defendant by his acts waive his privilege and exemption from service of said summons 1 ” In opposition to said motion affidavits were presented. tending to show that the defendant had property in this state, and that while here; when not in attendance at court, he spent his time in -transacting business connected therewith and in visiting old friends and acquaintances; that on the 2nd of July, 1908, he commenced an action in the Supreme Court to replevy certain personal property valued at the sum of $2,000; that he swore to the complaint and an affidavit therein on the first of July and furnished an undertaking executed by two sureties ; that on July 8th, 9th and 10th he moved said personal property from the house in which it had been kept and stored it in several other places, hiring help for the purpose and himself taking an active part in the removal; that he took away with him certain other chattels and among them two family portraits; that after the motion papers were served, although search was made for him, he *163 could not be found until Sunday morning; that he stated to one affiant before the trial that he did not come to this state simply to be a witness but also for the purpose of adjusting all matters of difference between himself and the plaintiff, and if he could not effect a settlement to take back to California with him certain heirlooms, keepsakes and other personal property; that he stated to another affiant shortly after his arrival in this state that he came for the purpose of settling everything relating to his affairs. When a non-resident comes into this state for the sole purpose of being sworn as a witness, the privilege of exemption from the service of civil process is extended to him, not merely for his own convenience but also to enable the courts to properly transact their business. As we have recently said : “ 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.” (Parker v. Marco, 136 N. Y. 585, 589.) If he comes here for no purpose other than to be a witness, he is protected from the service of process upon him while coming into this jurisdiction, while remaining in attendance at court and while returning home, provided he returns with reasonable dispatch after the trial has ended. If, however, he comes for the double purpose of attending court and attending to business having no connection with the trial, the privilege does not attach to him. While what he does and the time he spends here before the service is made is more important than the time spent and the acts done thereafter, still the latter are taken into account as reflecting upon his original intention. We think the affidavits presented a question of fact as to the purpose for which the defendant came into this state. The presumption is that the service was regular and the burden was upon the defendant to establish that it was not. His own affidavit, if uncontradicted either specifically or by proof of conflicting circumstances, was sufficient for that purpose, but it was met by opposing affidavits tending to show that he *164 came here not only to attend the trial but also to transact private business. By the concurrent action of the courts below all the questions of fact have been settled in favor of the plaintiff beyond our power of review. The evidence warranted the conclusion, and we must presume from the record, of which the opinions form no part, that the Special Term found and that the Appellate Division affirmed the finding that the defendant did not come into this state solely for the purpose of becoming a witness. It follows that the order appealed from should be affirmed, with costs; that the first question certified should be answered in the negative, and that the second question should not be answered, since by the answer to the first it has become of no importance.