
    Amelia A. Finucane, Plaintiff, v. Charles G. Warner, Defendant.
    (Supreme Court, Monroe Special Term,
    August, 1908.)
    Witnesses — Attendance and privileges of witnesses and production of documents — Exemption from service of process or papers — Loss of privilege by delay.
    Where defendant, a nonresident, while in attendance on a trial in this State as a party and a witness, was served with the summons in another action in the Supreme Court and remained in this State many days, the last ten or twelve of which he had full knowledge of his privilege and right to have the service vacated, his motion for such relief, made after he had apparently fully completed his other business and at a time when it was too late for plaintiff to obtain service of another summons upon him, will he denied, as defendant will be deemed to have ratified the service of the summons.
    Motion to set aside service of summons.
    E. C. Olney (George Raines, of counsel), for plaintiff.
    George R. Graves (Charles D. Newton, of counsel), for defendant.
   Sawyer, J.

This defendant, who is a resident of the State of California, came into the State of New York for the purpose of appearing as a party and a witness in an action.then pending in the Supreme Court of this State; the action in which he was interested was tried at the court-house in the village of Geneseo, commencing the 22d day of June, 1908, and ending the 25th day of June, 1908.

Upon the first day of the trial, to wit, the twenty-second day of June, the summons in this action was served upon him. Following the service of the summons and after the completion of the trial, for the sole purpose of attending which he came here, as is claimed, and until Sunday, July 12, 1908, he remained in this State and then returned to his home in California,

During all the time he so remained in the State, he seems to have engaged in various matters of a personal nature, among other things instituting an action for replevin and recovering into his own possession certain personal property, visiting with his friends and acquaintances and, generally, for some sixteen or seventeen days following the close of the action which he came here to attend, busying himself in such matters as suited his convenience and inclination.

Upon the first day of July, he made and verified the affidavit upon which this motion is made and, evidently, at about the same time, consulted with his attorney in regard thereto, for the attorney’s affidavit attached to the motion papers seems to have been verified upon the second day of July.

So far as appears upon this motion, nothing further was done by him in reference to it until the tenth day of July, when he procured from Hr. Justice. Foote a stay of proceedings until after the hearing and determination of this motion and an extension of his time to appear herein.

Upon the eleventh day of July, between 7 and 8 o’clock in the evening, that day being Saturday, he for the first time advised plaintiff that he claimed his privilege, by the service of this notice of motion and the papers upon which it is based; and the following day (Sunday) he left for California.

Some dispute appears in the papers as to whether or not his attendance upon the trial was the sole reason for defendant’s voluntarily coming into the State. Assuming that when he came there was no other intention in his mind, no question can exist but that, during the time when he was here in attendance upon the trial and for a sufficient time thereafter to enable him to leave the State, he was privileged, and no valid service of process could be made upon him. If he had claimed his privilege and asserted his rights and promptly and immediately left the State, the service of the summons in question would be vacated and set aside. This he did not do, hut remained for many days, the last ten or twelve of which he had full knowledge of his privilege and Ms right to 'have the service vacated. Instead of promptly claiming his privilege, he stayed until his other business had apparently been fully completed and then attempted to assert it at a time when it was too late for plaintiff to obtain service of another summons upon him.

The trial of the action ended upon the twenty-fifth, and he could have left the State upon the day following, at least; at' any time after that he was not privileged and service upon him could properly have been made. Had he promptly claimed his privilege, as the cases all indicate is required, this plaintiff would doubtless have obtained new service. Instead of this he seems to have deliberately intended she should believe her action properly begun until such time as suited his convenience and when it was too late for her to rectify her error.

This the courts cannot countenance; and it must be held that defendant has waived any privilege he may have had, and ratified the service of the summons upon him.

Motion denied.  