
    Jacob Baiz, Plaintiff, v. Raphael M. Malo et al., Defendants.
    (Supreme Court, New York Special Term,
    June, 1899.)
    Witness — Exemption, of vice-consul of the Republic of Colombia.
    Under the treaties existing between the United States of America and the Republic of Colombia, a vice-consul of the latter country cannot be compelled by subpoena to become a witness in proceedings supplementary to execution.
    
      Application to set aside a subpoena requiring Jose Gerardo Polo, vice-consul of Colombia, to attend as a witness. The facts are set forth in the opinion.
    T. L. C. Keating, for motion.
    Cardozo & ¡Nathan, opposed.
   Gildersleeve, J.

It is-here sought to compel the attendance as a witness in supplementary proceedings, of J. G. Polo, who is the vice-consul at ¡NTew York of the Republic of Colombiai. Article 30 of the Bidlack-Mallarino treaty of 1846, between .this country and Colombia, which, appears still to be in force, gives to the consuls and vice-consuls of Colombia» in the United States “ all the rights, prerogatives and immunities of the consuls and vice-consuls of the most favored nation.” The Everett-Sartiges treaty of 1853, between the United States and France, in article 2, which does not appear to have been abrogated, provides that, consuls and vice-consuls “ shall never be compelled to appear as witnesses before the courts. When any declaration for judicial purposes, or deposition, is to be received from them in the administration of justice, they shall be invited, in writing, to appear in court, and if unable to do so, their testimony shall be requested in writing,, or be taken orally at their dwellings.” Article 5, subdivision 4 of the OlaytonRivas treaty of 1850, between Colombia and the United States, is as follows, viz.: “ Whenever the presence of consuls may be required in courts or offices of justice, they shall be summoned in writing'.” There, however, does not appear to be anything in this treaty of 1850, annulling the provision in the treaty of 1846 giving the “most favored nation” privileges and immunities to the consuls and vice-consuls of Colombia in this country. In 1853, France became the “ most favored nation ” in the respect under consideration, and, under the treaty of 1846, the vice-consul of Colombia appears to be entitled to the immunities and privileges accorded to his French colleague in article 30 of the treaty of 1853, above quoted. It seems to me, therefore, that the presence, as a witness, of Mr. Polo cannot be compelled. In arriving at this conclusion, I am controlled by the case of United States v. Trumbull, 48 Fed. Repr. 96, as I am unable to find any authority antagonistic to the doctrine there laid down.

Ordered accordingly.  