
    In the Matter of J. Irwin Shapiro, as Commissioner of Investigation of the State of New York, Petitioner. Alice Sears, Respondent.
    Supreme Court, Special Term, New York County,
    January 13, 1956.
    
      Jacob K. Javits, Attorney-General (Mark J. Walsh of counsel), for petitioner.
    
      Arthur L. Milligan and Joseph F. O’Neill for respondent.
   Steuer, J.

The Commissioner of Investigation brings on this motion to direct the Sheriff to arrest the respondent, Alice Sears, and keep her in jail until she submits to examination pursuant to a subpoena that the commissioner has caused to be served upon her. It appears that when the subpoena was served no witness fees were paid to respondent. On the return date respondent did not appear but an attorney representing her presented a document which put forth several reasons why the subpoena was deemed invalid. The failure to tender witness fees was not included among the reasons.

The commissioner concedes that it has long been the law that a prospective witness may not be punished for the failure to obey a subpoena the service of which did not include the proper witness fees. To obviate the effect of the authorities so deciding, he claims that the appearance of the attorney was an appearance by the witness and waived the question of witness fees. He admits that no court has ever so decided.

It is doubtful whether the law suffers more from any cause other than the multiplication of subtleties of this kind. It is not at all unlikely that respondent’s failure to appear was not due to the lack of witness fees, but there is nothing in the rule of law as evolved which says it can only be invoked by those to whom the failure to pay makes a difference. Also, the reasoning that she did appear and hence the rule does not apply sounds odd in an application to punish because she did not appear.

The motion is denied. The other objections to the subpoena are not considered.  