
    PARKER v. MARCO.
    
      N. Y. Court of Appeals ;
    
    
      January, 1893.
    [Reversing 61 Hun, 519.]
    1. Service (and proof of) ; privileged persons.] A party to the-action as well as a witness is exempt from service of process while without the jurisdiction of his residence for the purpose of attending court in the action to which he is a party, or in which he is sworn as a witness. This privilege extends not. only to trials, but also to protect a party appearing upon the-examination of his adversary’s witnesses before a notary public in this State under U. S. R. S., § 863 where the testimony
    
      taken is to be read upon the trial of an action in a U. S. circuit court for another State.
    2. Tfie same.] In an action brought in the U. S. circuit court for South Carolina against a resident of that State, the parties agreed on the time ánd place for the examination of the plaintiff and his witnesses before a notary public in this State. The defendant came into this State for the purpose of being present at such examination, but when the time for taking the. testimony arrived the plaintiff abandoned it. While defendant was in the act of returning to South Carolina, plaintiff caused him to be served with a summons in an action brought in the supreme court of this State.—Held, that defendant was privileged from the service of process, and that he might move in the court in this State to set aside such service.
    3. The samel\ In such a case, the -plaintiff had an absolute right under U. S. R. S. § 863, to take the testimony of his witnesses, before a notary in this State.
    4. The same.] The compulsory character of the proceedings was. not affected by the waiver of notice, and the fixing of the time, of the examination by agreement.
    5. The same. J It seems that a writ of privilege or protection may still be issued by a court having common law jurisdiction-, to a party or witness in an action pending before it ; but such writ is not essential to the privilege of a party or witness ; its only office is to give convenient and authentic notice of the privilege.
    Appeal from an order of the General Term of the Supreme Court, First Department, reversing an order of the Special Term of that court, setting aside the service-of a summons.
    The action was brought by James H. Parker against Manuel Marco to recover the sum of $10,000. The plaintiff was a resident of the City of New York, and the defendant resided at Charleston, South Carolina.
    
      The summons in the action was personally served upon defendant, while in the City of New York for the purpose of attending the examination of plaintiff and his witnesses before a notary public, under a stipulation in another action between the same parties, brought in the United States circuit court for South Carolina.
    
      The Special Term set aside the service of the summons, upon the ground that the defendant was privileged from the service of process while here for the purpose of attending such examination.
    
      The General Term reversed the order of the Special Term; holding that the rule as to the privilege of parties and witnesses had no application to the case of a party living in a foreign State, having litigation pending there, who comes into this State for the purpose of taking testimony out of court. [Reported in 61 Hun, 519.] .
    The defendant appealed to this court.
    The further facts are fully stated in the opinion.
    
      John R. Abney, for appellant.
    I. The defendant was exempt from service, he being in this State for the sole purpose of attending the taking of testimony before a notary public in another action to which he was a party (Citing Year Book, 13 Hen. IV., 1 B. ; Viner’s Abr., “ Privilege,” 510; Bacon’s Abr. “Privilege”; Meekins v. Smith, 1 H. Bl. 636; Norris v. Beach, 2 Johns. 294; Bours v. Tuckerman, 7 Id. 538 ; Hopkins v. Coburn, 1 Wend. 292 ; Clark v. Grant, 2 Id. 257 ; Sanford v. Chase, 3 Cowen, 381 ; Seaver v. Robinson, 3 Duer, 622 ; Dixon v. Ely, 4 Edw. Ch. 557; Merrill v. George, 23 How. Pr. 331 ; Person v. Grier, 66 N. Y. 124; Mathews v. Tufts, 87 Id. 568; Thorp v. Adams, 18 Civ. Pro. 279 ; 19 Id. 351 ; Hollender v. Hall, 18 Id. 394 ; 19 Id. 292 ; Juneau v. Sheldon, 7 Fed. Rep. 44 ; Huddeson v. Prizer, 9 Phil. 65).
    II. The U. S. circuit court for South Carolina was entitled to respect; the privilege belonged to it as well as to the defendant (citing, in addition to the above authorities, U. S. R. S. § 863 ; Code Civ. Pro. § 915 ; 17 Viner Abr. 517, “ Privilege Plumpton v. Winslow, 9 Fed. Rep., 365 ; Lamed v. Griffin, 12 Id. 590).
    HE Either court could correct the violation of the privilege (citing Bours v. Tuckerman, 7 Johns. R. 538 ; United States v. Edme, 9 Sar. & R. 147).
    
      T. Henry Dewey, for respondent.
    I. Defendant was not exempt. The reason why parties and witnesses who come from foreign States into this State for the purpose of attending the trial of an action here are exempt from service of process, is that their presence in this State is necessary for the due administration of justice, and that without that exemption their attendance might not be readily obtained ; the exemption is not designed as a matter of convenience to the persons exempted, nor does it depend on any principle of comity or reciprocity (citing Person v. Grier, 66 N. Y. 124; Matthews v. Tufts, 87 Id. 568; Merrill v. George, 23 How. Pr. 331 ; Hollender v. Hall, 18 Civ. Pro. R. 394; 19 Id. 292 ; Thorp v. Adams, Id. 351 ; Day v. Harris, 20 Id. 255 ; Sander v. Harris, 20 Id. 285 ; Grier v. Young, 120 Ill. 184).
    
      
       This overrules Jenkins v. Smith, 57 How. Pr. 171 ; Scleschinger v. Foxwell, 1 City Ct. 461.
    
    
      
      Section 863 of U. S. R. S. provides for the taking of the deposition of a witness de bene esse in a civil action, depending in a United States district or circuit court, when the witness lives at greater distance from the place of trial than one hundred miles, or is bound on a sea-voyage, or is about to go out of the United States, or out of the district in'which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial or when he is ancient and infirm.
      The same principles doubtless should apply to one attending an examination under our New York statute.
      The provisions of art. 3 of tit. 3 of c. 9 of the Code of Civil Procedure give power .to our judges (and in aid of civil actions, justices of the peace) to issue subpoenas to require persons here to submit to examinationfin aid of a suit elsewhere, in two classes of cases-: 1, where the suit is pending in any court without this State, and a commission has been issued (Willenbrock v. Maybrine, 57 Hun, 146), and 2, where the suit is pending without'the State but witnin the United States, and a commission has not been issued (Matter of Savin, 9 Civ. Pro. R. 175).
      The power to compel the witness to submit to examination carries with it the power to compel him to produce books and papers. (Eldridge v. Chapman, 13 Abb. Pr. 68, note).
      
      According to People v. Irving, 1 Wend. 20, a person who could not be compelled to testify as a witness in the action if the action. were pending here, cannot be compelled to submit to examination under such a statute.
    
    
      
       S. P., Code Civ. Pro. § 217; Id. § 7, subd. 3, preserving old common law and equity jurisdiction and powers, and giving power to. devise new writs and proceedings.
    
   Maynard, J.

The defendant is a resident of South Carolina, and an action ad been there brought against him in the Federal circuit court by the plaintiff, who is a resident of this State. On April 6, 1892, the defendant came to the city of New York at the instance of the plaintiff, to attend an examination of the plaintiff and his witnesses before a notary public, which by the agreement of the counsel for the respective parties had been set down for that date. The plaintiff procured the defendant's assent to the examination upon the statement that he desired to be in readiness to try the cause at the ensuing April circuit, to be held at the city of Charleston. When the time for taking the testimony arrived, the defendant ■was informed by plaintiff’s counsel that he had abandoned his intention to take the evidence as proposed, for the rea-son that on,account of sickness in his, the counsel’s family, the plaintiff would not be prepared to go to trial at the .April circuit, and he expected to be able to produce his witnesses in court ‘when the trial should take place at a subsequent term. It .was then late in the afternoon, and the defendant returned to his hotel and remained over night, and the next morning started for his home in South 'Carolina. He was intercepted at the ferry by a process-server, who served him with a summons in an action brought by the .plaintiff in the supreme court of this State for the same cause of action at issue in the Federal court •in South Carolina. The defendant had no business in New York except that which related to the proposed examination. The defendant has appealed from an order of the General Term, reversing an order of the Special Term, which set aside the service of the summons upon the •ground 'that, when served, he was privileged from service.

Under section 863 of the Revised Statutes of the United States the plaintiff had an absolute right to take the testimony of his witnesses in this State to be used •upon the trial of the action in South Carolina, upon giving reasonable notice to the defendant. The compulsory •character of the proceeding was not affected by the waiver of notice and the fixing of the time by the agreement of parties (Plimpton v. Winslow, 9 Fed. Rep. 365). The same section provides that a person may be required to appear and testify before the notary in the same manner as witnesses in open court, and section 915 of our own Code authorizes any State judge to issue a subpoena to . compel the attendance of a witness in such a case. In the trial of the action the notary thus becomes the arm of the court, and, as was held In re Rindskopf (24 Fed. Rep. 542), represents the court pro hac vice.

The privilege of1 a suitor or witness to be exempt from -•service of process while without the jurisdiction cf his reáidence for the purpose of attending court in an action to which he is a party, or in which he is to be sworn as a witness, is a very ancient one (Year Book, 13 Hen. IV., I. B. Viner's Abr., “ Privilege”).

It has always been held to extend to every proceeding of a judicial nature taken in or emanating from a duly ■constituted tribunal which directly relates to the trial of the issues involved. It is not simply a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity, •and in order to promote the due and efficient administration of justice (Person v. Grier, 66 N. Y. 124; Matthews v. Tufts, 87 Id. 568).

At common law a writ of privilege or protection would be granted to the party or witness by the -court in which the action was pending, which would be respected by all other courts. We cannot find that the power to issue such a writ has been abrogated by legislation, and it doubtless exists, and the writ may still be granted by courts possessing a common law jurisdiction ; but while the granting of the writ is proper, it is not necessary for the enjoyment of the privilege, and the only office which it can perform is to afford convenient and authentic notice to those about to do what would be a violation of the -privilege, and to set it forth and command due respect to it (Bridges v. Sheldon, 7 Fed. Rep. 44). The tendency has been not to restrict but to enlarge the right of privilege so as to afford full protection to parties and witnesses :from all forms of civil process during their attendance at court and for a reasonable time in going and returning ■(Larned v. Griffin, 12 Fed. Rep. 592).

Hearings before arbitrators, legislative committees, registers and commissioners in bankruptcy, and examiners and commissioners to take depositions, have all been ■declared to be embraced within the scope of its application (Bacon's Abr. “ Privilege” ; Sandford v. Chase, 3 Cow. 381; Matthews v. Tufts, supra; Hollender v. Hall, 18 Civ. Pro. R. 394 ; 19 Id. 292 ; Thorp v. Adams, Id. 351; Bridges v. Sheldon, Plimpton v. Winslow, and Larned v. Griffin, supra). It has even been extended to a suitor returning from an appointment with his solicitor for the purpose of inspecting a paper in his adversary’s possession in preparation for an examination before a master (Sidgier v. Birch, 9 Ves. 69); and while attending at the registrar’s office with his solicitor to settle the terms of a decree (Newton v. Askew, 6 Hare, 319); and while attending from another State to hear an argument in his own case, in the court of appeals (Vincent v. Watson, 1 Rich. L. 197). No good reason can be perceived why the privilege should not be extended to a party appearing upon the examination of his adversary’s witnesses, where the testimony is taken pursuant to the authority of law, and can be read upon the trial with the same force and effect as if it had been taken in open court. It is a proceeding in the cause which materially affects his rights, and the necessity for his attendance is quite as urgent as it would be if the examination was had at the trial.

But we do not think that the question of the necessity of his presence is material.' It is the right of the party, as well as his privilege, to be present whenever evidence is to be taken in the action which may be used for the purpose of affecting its final determination. It is essentially a part of the trial, and should be so regarded so far as it may be necessary for the protection of the suitor. There have been many analogous cases in the Federal courts where the right to the privilege has been upheld. In Bridges v. Sheldon, supra, the action was pending in the United States circuit for Vermont. A reference had been ordered to a master to take and state an account. The master, on motion of the plaintiff, had made an order for the taking of a deposition before a commissioner in the State of Iowa. The defendant, while attending before the commissioner in Iowa, was served with process in a suit brought by the plaintiff for the same cause of action as in the Federal court. Judge WHEELER, in very-strong terms, condemned the procedure, and held that the defendant was absolutely privileged from service, and that the conduct of the plaintiff in causing such service to be made was a contempt of court, and could be punished as such. It seems that in such a case the party has a twofold remedy. He may move in the court whose privilege has been violated to punish the party in that court who, has been guilty of such violation, or he may move in the: court out of which the process has been improperly issued; to vacate it, and the motion will be granted.

In Plimpton v. Winslow (supra), the suit was pending In the United States circuit for Massachusetts. By agreement of counsel testimony was taken before a special examiner in New York city, and while defendant was attending before the examiner he was sued by the plaintiff in the United. States circuit for New York. Judge BlatchFORD set aside the service saying: “ It is very clear that the motion must be granted. The defendant attended as a party before the examiner. The regularity of the examination was recognized by the attendance of the plaintiff. The defendant had a right to attend upon it in person, whether he was to be himself examined as a witness before Mr. Thompson or not, and he had a right to be protected, while attending upon it, from the service of the papers which were served in this suit. He attended in good faith. The privilege violated was a privilege of the Massachusetts court, and one to be liberally construed for the due administration of justice.”

In Larned v. Griffin (supra), the defendant was in Massachusetts attending upon the taking of a deposition under a commission issued out of the superior court of Cook county, Illinois, and was arrested upon civil process in an action brought in a State court of Massachusetts, which was afterwards removed into the United States circuit court. Judge Colt sustained a plea in abatement on the ground that the defendant was exempt from process. In Hollender v. Hall (supra), the witness was attending, pursuant to a stipulation, before a notary public, to have his deposition taken in an action pending in the United States district court for the southern district of New York, and the Special Term set aside the service of process upon him, and its decision was affirmed by the General Term of the First Department. A distinction is sought to be made between that case and the one at bar, because there the court in which the action was pending existed within the limits of this State, while here it is a court sitting in another State. There does not appear to be any sound principle upon which such discrimination can rest. A federal court exercising its jurisdiction in another State has the same privileges and can afford to its suitors the same immunities as a like court sitting in this State. Both exist by virtue of the federal constitution and laws, which are supreme everywhere, and when taking testimony out of court in this State both are proceeding under the same act of congress. A party who is brought here in such a proceeding is, we think, entitled to the-same protection without regard to the local jurisdiction of the court in which the action is pending.

It may be assumed that the plaintiff acted in entire-good' faith, and that his procedure was not a device to secure the presence of the defendant within the territorial jurisdiction of the courts of this State. In the view we take of the privileges of the defendant, the plaintiff’s motive is of no importance.

The order of the General Term must be reversed, and: the order of the Special Term affirmed,' with costs.

All the judges concurred, except Gray, J., dissenting 
      
       See for the practice, Brett v. Brown, 13 Abb. Pr. N. S. 295.
      The provisions of our Code of Civil Procedure respecting this privilege are so framed as to refer only to persons subpoenaed or - ordered to attend for the purpose of being examined, in a case where his attendance may lawfully be enforced by attachment or-by commitment.
      By section 865 this applies to the case of a person who, “ by-the terms of a judgment,” is ordered to attend.
      These provisions would be enforced not only by the court whose privilege is invaded, and by the court whose process is used; to invade the privilege, but a discharge may be ordered by a justice.of the supreme court in any part of the State, or by a county-judge or superior city court judge within his district (§862); the the arrest is void ; is a contempt; and the party whose witness was thus interfered with may recover damages of the party causing the arrest or of the officer making it; and the witness may recover treble damages (§ 863) unless the witness on request of the party or sheriff fails to make affidavit to the facts showing his privilege.
      In the case of Wright v. Bennett (N. Y. Court of Appeals, 1889,) not reported] it was held: (1) That where effort to avoid service was hown, the throwing of the process into the hall by the process-server on being refused admission, the process falling near the feet of the defendant and his attention being called to it, might be held sufficient personal service.
      (2) That treating an attempted personal service as ineffectual for the purpose of applying for an order for substituted service, is not a conclusive election, but the plaintiff may, notwithstanding, still claim that the personal service was effectual.
      Appeal by defendant from an order of the General Term of the Supreme Court, Second Department, affirming an order of the •Special Term denying defendant’s motion to set aside the service of 3. summons, and the judgment founded thereon ; and also from the judgment of said General Term affirming such judgment.
      Action for libel brought by Russell Wright against James Gordon Bennett. Defendant moved to set aside a judgment by default entered against him in such action, founded upon an alleged per.sonal service of the summons, and for other relief upon the following grounds: (i) that there was no sufficient, proof of personal ■•service of summons and complaint; (2) that an order had been made fqr the service of the summons by publication, and it had been so served, and the order of publication had never been revoked and that pending said order, and upon the same state of facts, plaintiff ' could not claim there had been a personal service ; (3) that if there had been a personal service, it was waived by subsequently obtaining an order for service by publication ; (4) that after making a service by publication, plaintiff could not, without notice to defendant, claim that there had been a previous personal service, and proceed in such service as if no order' for publication had previously been . made; (5) that the court had been misled by the withholding from it the fact that an order of publication had previously been granted and was still in force.
      The affidavit of the person who made the alleged personal service of the summons stated the service to have been made as follows : “ I went to the address (The New York Yacht Club Rooms), .and inquired for said defendant of a servant in the hallway, and while speaking with said servant the said defendant came out of an ■adjoining room into said hallway. I immediately started towards said defendant, but was prevented from reaching him by the said •servant, who placed himself in front of me and held me back. I ■called to the said defendant, who was in the act of returning to said room, stating that I had a summons to serve on him, at the same time making an effort to free myself from the said servant. Seeing I could not do this in time to intercept said defendant, I threw the papers (z‘. e., the summons and said copy of said complaint) at said defendant, at the same time telling him that I served him with said papers. The papers did not actually touch defendant’s person, but they fell within a few feet of him. I left said papers lying where I had thrown them. ' When I called to said defendant, he stopped for a moment and said, ‘ I can’t attend to those matters here ; call at my office, to-morrow, and I will see you,’ or words to that effect. I know the person served as aforesaid, to be the person served as aforesaid,” etc.
      In support of such service of the summons, there were also further affidavits showing that prior attempts had been made to serve defendant, but that he had avoided service, and had subsequently departed from the State with an intent to avoid service.
      Upon the motion to set aside such service, the defendant substantially admitted the facts as the service as above stated, and showed that on the same state of facts plaintiff had procured an order of publication and had served the summons pursuant to it. It also appeared that by the rules of the New York Yacht Club, that the club house was accessible only to persons introduced by members or servants of the club, and that other persons were not .admitted.
      
        The Special Term, in denying defendant’s motion, rendered the following opinion :
      Cullen, J.—I think a valid service of the summons and complaint was effected on the defendant. The court should protect the citizen from violence or other misconduct on the part of the process-server, but the plaintiff had the right to institute his action against the defendant, and the latter’s persistent efforts to avoid service of the summons as shown by the affidavits, and practically conceded by his counsel, justified efforts on the part of the process-server that might be otherwise improper, and require the court to avoid the service.
      Motion to set aside judgment denied with ten dollars costs, with leave to defendant to apply to open the default.
      
        Al the General Term, the order of the Special Term was affirmed, Dykman and Pratt, JJ., concurring therein, without opinion.
      Barnard, P. J. (dissenting)—The papers show that the defendant was at a private club house in New York. The process-server applied for admittance and was refused. He attempted to go in notwithstanding the refusal, and was prevented. The admittance would have been against the rules of the club. While this contention was going on, the defendant appeared at a door at the end of the hall and inquired what the trouble was about, and was informed that the person who wanted to get in wished to see him. The defendant replied that he could see no one then, but would be at his. office the next day. The process-server then threw a paper at the defendant, which fell within a few feet of him. The attendant at the door showed him out and threw the paper after him into the street.
      This was not a good personal service, and the cases which are cited to the effect that a service need not be personal, in reality, but only be such that the party be apprised of the action, such as Hiller v. Burlington & Missouri R. R. Co. (70 N. Y. 223), and the cases cited in the opinion. The cases are all based upon a service other than personal, but which were by law, equivalent to a personal service. The person who served the process was a trespasser in attempting to enter the house after being forbidden. The defendant was guilty of no wrong in declining to receive him there. The-attendant at the door only did his duty in preventing an unauthorized entry in his house, and throwing a summons within a few feet of the defendant was not a sufficient service.
      Neither party considered the service personal. The process-server attended the next day at the defendant’s office to serve him,, and the defendant did .not keep his promise to be there. In April, 1885, the summons was placed in the hands of an officer for service,, and subsequently, on November 23, 1885, the plaintiff obtained an order for substituted service, which was made, and the papers on this service were placed in an attorney's hands. In May, 1886, the plaintiff obtained an order to assess his damages as upon a personal service of summons, and a default of answer. The action of the plaintiff in obtaining an order for substituted service was entirely at variance with the fact of personal service, and the defendant properly relied on the fact.
      The order should be reversed, and motion to set aside service granted without costs to either party on appeal.
      Defendant appealed to this court.
      
        Joseph H. Choate and Theron G. Strong John Townshend, attorney) for appellant.—I. No valid personal service was made, because in attempting to make it the process-server committed a trespass, first, in invading a private house, and second in assaulting the: ■defendant (citing Cercle Francais de l’Harmonie v. French, 44 Hun, 123; Mason v. Libby, 1 Abb. N. C. 354; S. C., 51 How. Pr. 436; People v. Hubbard, 24 Wend. 369; Curtis v. Hubbard, 4 Hill, 437 ; Crocker on Sheriffs, § 350 ; Davison v. Baker, 24 How. Pr. 39).
      II. The facts failed to show a valid personal service (citing Van Rensselaer v. Palmetier, 2 How. Pr. 24; Van Rensselaer v. Petrie, Id. 94; Davison v. Baker, 24 Id. 39; Robbins v. Clemmons, 4 Ohio St. 285 ; People v. The Judge, etc., 38 Mich. 310; Craig v. Gisborne, 13 Gray, 270; Fitzgerald v. Salentine, 10 Met. 436; Hiller v. Burington & Missouri R. R. Co., 70 N. Y. 223).
      III. The order of publication was granted a year after the ■alleged personal service was made, and is based on affidavits which stated and recited the fact that personal service on the defendant had not been made and could not be made. The order was an adjudication to the effect that personal service had not been and could not be made, and estopped the plaintiff from afterwards claiming that there had been personal service (citing Kennedy v. N. Y. Life Ins. etc. Co., 32 Hun, 35 ; Chase v. Lawson, 36 Id. 221 ; Smith v. Mahon, 27 Id, 40; Wortman v. Wortman, 17 Abb. Pr. 66; Peck v. Cook, 41 Barb. 549; Rawdon v. Corbin, 3 How. Pr. 416 ; Niles v. Vanderzee, 14 Id. 547).
      
        Chauncey Shaffer and A. N. Weller (Robert Seabury, attorney) for respondent.—I. As a general rule any service will be sufficient which renders it reasonably probable that the party proceeded ■against will be apprised of the action, and have an opportunity to defend (citing Hiller v. Burlington & Missouri R. R. Co., 70 N. Y. 223; Pope v. Terre Haute Car Co., 87 Id. 137 ; Gibbs v. Queen Ins. Co., 63 Id. 114; Southwell v. Marryatt, 1 Abb. Pr. 218 ; Hilton v. Thurston, Id. 318 ; Putnam County Chemical Works v. Jochen, Daily Reg. Feb. 18, 1886 ; Downes v. Witherington, 2 Taunt. 243 ; Bulkley v. Bulkley, 6 Abb. Pr. 307 ; Borden v. Borden, 63 Wis. 374; Norton v. Mead, 4 Sawyer, 618 ; Slaight v. Robin, 13 N. J. Law, 340 ; Hagers v. Danforth, 20 Barb. 16 ; Lagraves Case, 14 Abb. Pr. (N. S.) 333.
      II. The service by publication did not invalidate the prior service (citing Dresser ». Wood, 15 Kan. 344).
      The Court of Appeals affirmed the order of the General Term which affirmed the order of the Special Term, denying the motion to set aside the service of the summons without opinion. [Mem., reported in 115 N. Y. 645.]
      All the judges concurred, except Andrews, Danforth and Gray, JJ., who dissented.
     