
    Samuel Marks et al., App’lts, v. La Societe Anonyme de L’Union des Papeteries, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    
      . Service—Exemption—How lost.
    A foreign witness who arrives too late for trial and unnecessarily delays the taking of his deposition de lene esse for use on a new trial, or in another action, and in the meantime transacts business here, thereby loses his privilege, and service on him will not be set aside on the ground of exemption from service of process.
    Appeal from an order made at special term setting aside the service of a summons on the ground that the person upon whom it was served was a resident of a foreign country temporarily within the state for the purposes of attending as a witness.
    
      David Tim, for app’lts; Coudert Bros. (F. R. Coudert and Joseph Kling, of counsel), for resp’t.
   Bookstaver, J.

Witnesses are entitled to immunity from the ■service of civil process for the commencement of actions while .attending our courts for the purpose of testifying, and this immunity does not depend on statutory provision, but is deemed necessary for the due administration of justice, and extends not •only to witnesses but also to the parties to the action. Matthews v. Tufts, 87 N. Y., 570. It also applies where the witness is a director of a foreign corporation and is served with the summons in an action against such corporation. Sheehan v. Bradford, B. & K. R. R. Co., 3 N. Y. Supp., 790. And it makes no difference whether the testimony is taken on the trial of the action in a court, or de hene esse before a referee or notary. Hollender v. Hall, 18 Civ. Pro., 396.

The only question to be determined, therefore, on this appeal, is whether Engelbert de Limburg-Stirum, who was a director and the president of the defendant society, was actually in this country as a witness at the time of the service of the summons upon him, and for no other purpose. For if he were voluntarily within the state upon private business other than attending trial as a .party to a litigation or appearing as a witness in the courts of this state in other judicial proceedings, he could not claim exemption. Sander v. Harris, 37 St. Rep., 594.

It appears that two actions were commenced in the supreme court by the defendant herein against the plaintiffs; one an action in replevin and the other for an accounting. The replevin action had been reached upon the calendar before the 16th January, 1892. .and was set down for a day certain ; the accounting action had not then appeared upon the day calendar and no trial of it was imminent. On the day last named the defendant’s attorney sent a cable message to Brussels requesting Limburg-Stirum to come to America as soon as possible, with letters, etc. Presumably -this cable was for the purpose of having him here as a witness in the first action.

In obedience thereto, he left Brussels on the 26th January, but •did not arrive here until the 6th February. On his arrival he was informed that the replevin action had been tried and a verdict rendered in favor of the defendants therein and against his company, consequently he was no longer needed as a witness on that trial; and the talcing of his testimony de bene esse after verdict was merely precautionary in view of a possible new trial of that action or in order to have the deposition for use in the action for accounting. Consequently under such circumstances it was his ■duty to have such examination taken with as little delay as possible, and for this purpose he could at once have applied 'to the court for an order for his examination which would have been made returnable within a few days; but from the papers it appears that instead of doing this, negotiations were entered into between the counsel for the respective parties looking to such examination de bene esse, with the result that a stipulation for the taking of the •deposition was entered into on the 2d March and the testimony taken on the 4th of that month. Meanwhile the witness was transacting business with, several persons and firms in this city and vicinity, and plaintiff’s counsel, having learned of this fact, ¡served him with the summons in question on the 27th February, before the giving of the stipulation. It also appears from the ■papers that when the stipulation was given, or about that time, it was stated to plaintiff’s counsel that the witness intended to sail for Europe on the 5th March and had engaged passage for that date, but he did not actually sail until the 12th of that month.

On this state of facts we do not think the service of the summons ¡should have been set aside, for it is apparent, notwithstanding the affidavit of the witness, that he unnecessarily delayed the taking •of his deposition, and attended to business matters while here, and that the object of his stay was at least in part for business purposes. Hence he lost his privilege by remaining in the state an unreasonable and unnecessary length of time. Finch v. Galigher, 25 Abb. N. C., 404; Van Lieuw v. Johnson, referred to in Pearson v. Gier, 66 N. Y., 126. Besides this, the witness remained in this state a week •after the deposition was actually taken, although plaintiff's counsel was informed that he was to sail on the following day; non constat but had plaintiffs known of this intended delay, they would have ■served a new summons upon him.

Wo therefore think the order should be reversed, with costs.

Bischoff, J., concurs.

Pryor, J.

I concur in the decision, but upon the ground that the case is neither within the letter nor the spirit of the law according immunity to witnesses from service of process.

The process was not served upon the witness, but on the defendant corporation, of which the witness was president and director. “ Personal service of a summons upon a defendant being a foreign corporation must be made by delivering a copy thereof to the president,” etc. Code, § 432. Thus, it is the corporation that is served, and not the president to whom the copy-summons is delivered.

The policy of the law is, not to repel foreign witnesses from our jurisdiction by apprehension of personal consequences. But, by the delivery of the summons against the corporation to the president, he incurred no personal peril or embarrassment Indeed,, the interests of justice are promoted, rather than obstructed, by upholding this service, instead of sending the citizen to a foreign country for redress of his grievance.

Sheehan v. Bradford, etc., 3 Suppl., 790, is a special term decision ; and, I think, is unsupported by reason or authority.  