DuPont v. Bronston

McGivern, P. J. Judgment debtor, a nonresident, invokes the ancient privilege of immunity from service of process as ground for an order quashing a CPLR 5224 (subd. [a], par. 1) subpoena ad testificandum, and thus doing, poses the central issue for determination. The subpoena was served upon the judgment debtor on June 19, 1973, in the corridor adjacent to the second floor courtroom of the United States Tax Court, where he was in voluntary attendance as a suitor. In personam jurisdiction was not challenged in the underlying action. Judgment debtor interposed a counterclaim for 22 million dollars, and the litigation culminated in judgment, entered July 1, 1971, in an amount exceeding 3 million dollars. On March 7, 1973, judgment creditor instituted an action on the judgment in the United States District Court, Northern District of Texas, and deposition of the judgment debtor upon oral examination, including the subject of his property interests, was commenced prior to service of the instant subpoena and continued thereafter pursuant to court order (see CPLR 5224, subd. [f]). Initially, the court at Special Term referred the issue of judgment debtor’s New York residency at the time of service of the subpoena to a Special Referee to hear and report. Thereafter, the scope of the reference was broadend to encompass the issue of immunity. The Referee’s report recommended that judgment debtor be afforded the protection of the privilege of immunity upon the predicate findings of non-New York residence and presence in the State for the sole purpose of attendance as a suitor in the United States Tax Court. Special Term denied the motion to confirm the Referee’s report, granted the cross motion to disaffirm, and denied the motion to quash, reasoning that, notwithstanding judgment debtor’s nonresidence at the time of service of the subpoena, the in personam jurisdiction acquired in the underlying action continues until the judgment is satisfied and such earlier acquired jurisdiction precludes application of the rule of immunity. We conclude that under all the circumstances, the judgment debtor’s motion to quash the subject subpoena should have been granted. “ 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 ”. (Thermoid Co. v. Fabel, 4 N Y 2d 494, 499; Chase Nat. Bank [371] v. Turner, 269 N. Y. ,397; Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 380; Parker v. Marco, 136 N. Y. 585; Person v. Grier, 66 N. Y. 124,125-127.) A subpoena act testificandum is process. (2A Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2301.03; 7B McKinney’s Cons. Laws of N. Y., CPLR 5224 Supplementary Practice Commentary [1971].) “ The subpoena to appear, referred to in some jurisdictions as a summons, is consistently defined in all jurisdictions having a statutory definition as a process in the name of the body or person authorized to issue it requiring attendance at the time and place it specifies.” (First Preliminary Report of Advisory Committee on Practice and Procedure, 1957, p. 357.) Service of a subpoena, including one issued pursuant to CPLR 5224 (subd. [a], par. 1) must be effected “ in the same manner as a summons.” (CPLR 2303.) As the Notes of the Advisory Committee on Practice and Procedure further inform us, CPLR 2303 is predicated upon the recognition that “ the function of the subpoena in obtaining jurisdiction over and giving notice to the person served is identical with that of the summons.” (First Preliminary Report of Advisory Committee on Practice and Procedure, 1957, p. 163.) CPLR 5224 (subd. [a], par. 1) read in conjunction with CPLR 5223, prescribes service of a subpoena ad testificandum to compel attendance of the judgment debtor for deposition regarding matters relevant to satisfaction of the judgment. (Cf. CPLR 3106, subd. [b].) In our view, there appears no authorization for service of a subpoena ad testificandum outside the State. (See Judiciary Law, § 2-b; Siemens & Halske GmbH. v. Gres, 37 A D 2d 768, citing with approval, Israel Discount Bank v. P. S. Prods., 65 Misc 2d 1002 ; 2A Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2303.06.) But for the judgment debtor’s presence in this State, then, he would not have been amenable to service of the instant CPLR 5224 (subd. [a], par. 1), subpoena ad testificandum (ibid.). This factor, under the circumstances set forth above, is of no mean significance to the judgment debtor’s application. Judicial development of the doctrine of immunity from service of process reflects a tendency f ‘ 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”. (Chase Nat. Bank v. Turner, 269 N. Y. 397, 400, supra; emphasis furnished.) The privilege is more than the personal right of the individual suitor or witness; it “is also the privilege of the court.’’ (Parker v. Marco, 136 N. Y. 585, 589, supra.) At stake is the [372] transcendent interest of the courts in fulfilling their obligation “to promote the due and efficient administration of justice.” (Ibid.) We deem these interests paramount, and vindicate them by affording judgment debtor the protective aegis of the traditional rule of immunity under the circumstances. And we note, as did the Court of Appeals in Thermoid Co. v. Fabel (4 N Y 2d 494, 500, supra) “ comity suggests we .should carefully avoid interference with a privilege of the Federal courts.” Accordingly, the order of the Supreme Court, New York County (Waltemade, J.), entered August 2, 1974, denying the motion to quash the subpoena issued in an article 52 proceeding, should be reversed on the law and on the facts, the Referee’s report confirmed, and the motion to quash the subpoena granted, without costs and without disbursements.