
    Maurice Ginsburg, Respondent, v. Max Heller, Defendant, and Jule Schonberger, Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1913.)
    Service of process — exemption from—voluntary appearance of nonresident.
    Where a resident of another state voluntarily comes into this state with the intention of testifying in a civil action, he is exempt from the service of a summons and complaint until such reasonable time after he has testified, or the necessity for his testimony has been obviated, as may be required for him to depart this- state on his return.
    Appeal by defendant Jule Schonberger from an order of the City Court of the city of New York denying his motion to set aside and vacate service of a summons and complaint in this action.
    Pierce & Hulbert (G. Murray Hulbert, of counsel), for appellant.
    Morris & Samuel Meyers, for respondent.
   Delany, J.

The immunity accorded to the appellant began when, with the intention of testifying in a civil action in this state, he left his home in Chicago. It continued, provided he did not relinquish that intention, until he had testified or the necessity therefor had been obviated and until such reasonable time thereafter as might be required for him to depart this state on his return. The fact that some one either by design or superserviceable zeal had him served with a subpoena to appear in the same cause would not take from the voluntariness of his appearance nor destroy the intention with which he came into the jurisdiction. Nor can it be presumed that his appearance was in compliance wth the subpoena rather than in accordance with his original intention. His mere averment of the service of the subpoena here and of his compliance therewith does not change the facts. It is this voluntary appearance coupled with this intention which gives a witness from beyond the jurisdiction the immunity from service by process as is said “ eundo, morando et redeundo.” The distinction made here, it seems to me, is so fine that to give effect to it would destroy the salutary purpose which gave origin and confidence to this privilege of immunity.

The learned trial justice bases his decision on Dwelle v. Allen, 151 App. Div. 717; but the resemblance of that case with the one at bar disappears when one considers that Mr. Justice Dowling held in that case that the defendant was at the time he was served with process in the jurisdiction under compulsion; ’ ’ whereas in this case the appellant had come into the state voluntarily, and only for the purpose of testifying. The decisions in the numerous judicatures where this privilege has from time immemorial been recognized are not free from seeming contradictions as mentioned or alluded to in the opinion by Mr. Justice Werner in Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, but to contract unreasonably its sphere of operation would deprive this policy of immunity of its utility to promote the ends of justice.

Order reversed, with ten dollars costs and disbursements, and motion granted.

Lehman and Gerard, JJ., concur.

Order reversed.  