Ahrens v. Coleman

Finelite, J. This is a motion why Mary Coleman should not be punished for an alleged contempt committed by her in failing to obey a mandate issued out of this court. It appears from the moving papers that a subpoena was issued under the hand of one of the justices of this court, directed to the said Mary Coleman, to appear as a witness before one of the justices of this court on the 19th day of February, 1910, to be examined as a witness in a proceeding pending therein; that at the time said subpoena was served upon said * witness personally fifty cents, the subpoena fee, was paid to her; that said witness failed to obey the subpoena; that it nowhere appears in the moving affidavit at what place said subpoena was served personally upon said witness, but from the answering affidavit of said witness it appears that the [570] said witness resides at No. 126 East One Hundred and Twenty-second street, in the city of New York, borough of Manhattan. The Code of Civil Procedure, section 3318,' reads: “A witness in an action or in a special proceeding attending before a court of record, or a judge thereof, is' entitled, except where another fee is especially prescribed by) law, to. fifty cents for each day’s attendance; and," if he’ resides more than three miles from the place of attendance,' to eight cents for each mile going to the place of attendance.” ■ The point here presented for decision was whether the witness was entitled to mileage from the place where she was served with a subpoena or from her place of residence, and it was held in Pike v. Nash, 16 How. Pr. 53,' that no matter where the service was made mileage was to be computed from her residence. And, as was pointed out herein, that said witness resided at No. 120 East One Htmdred and Twenty-second street, in the city of New York, and where the moving affidavit is silent as to where said witness was served, it must be presumed from the answering affidavit that the witness was served at her residence, which place is more than three miles from the court house where she was to appear. Therefore she was entitled, in addition to the fee paid, to a mileage in the sum of eight cents for each mile from her residence going to the place of attendance, as required under section 3318 of the Oode of Civil Procedure. Smith v. Hutton, 132 App. Div. 445. The witness, however, should have attended and obeyed the. subpoena of the court; but as the law is as here above pointed: out, on which she relies, the court is concluded to follow; the same and deny the motion to punish her for a contempt' of court. Motion, denied.