
    Helen F. Dwelle, Appellant, v. Nathan Allen and Others, Respondents.
    First Department,
    June 28, 1912.
    Process — subpoena — foreign resident in this State not exempt from service.,
    Defendant, a non-resident of this State, voluntarily came to the city of New York on October 3,1911, to plead to an indictment against him in the Federal court, and on the same day was served with a subpoena from the Federal court requiring him to testify in the city of New York on October third. He obeyed the subpoena and at the direction of the district attorney appeared again on October fourth, when he was directed to appear again on October eleventh. He then departed from the State, but returned on October eleventh for the sole purpose of obeying the subpoena, and after being excused from further attendance was served with a summons in a civil action.
    Held, that since the defendant was in this jurisdiction under compulsion by means of a subpoena, he was not exempt from service.
    Appeal by the plaintiff, Helen F. Dwelle, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1912, granting the defendants’ motion to vacate and set aside the service of a summons.
    
      James W. Osborne, for the appellant.
    
      H. Snowden Marshall, for the respondents.
   Dowling, J.:

The defendant Allen, who was a non-resident of the State of New York, voluntarily came to the city of New York on. October 2, 1911, in order to plead to an indictment against him in the United States. Circuit Court for the Southern District of New York, charging him with the crime of smuggling. He entered a plea of guilty, and on the afternoon of that day was sentenced to pay a fine of $12,000. Between the time of the entry of the plea and the imposition of the fine he was served with a subpoena, subscribed by the United States district attorney, requiring him to attend before the grand jury of the People of the United States for the Southern District of New York, in the city of New York, on October 3, 1911. He obeyed the subpoena, and appeared and testified on October third; he was directed by the assistant United States district attorney to appear again on the afternoon of October fourth; he obeyed such direction and again testified, and was after giving such testimony directed by United States District Attorney Wise in the grand jury room to appear again before the grand jury on the afternoon of October eleventh. He then left the city and departed from the State, but returned thereto, as he swears, for the sole purpose of continuing my appearance before the said Grand Jury, in obedience to said subpoena, and in accordance with the directions of the said United States Attorney Henry A. Wise.” When he presented himself at the grand jury room, on October eleventh, he was excused from further attendance, after' a conference with the assistant district attorney, and as he was departing from the latter’s office he was served with the summons herein, which service has been vacated and set aside by the order appealed from.

It is clear that while the defendant’s original entry into the State of New York was made to plead to an indictment against him, before he had been placed under arrest, yet his subsequent stay in the State and his return thereto on October eleventh were under compulsion of law, for they occurred under the pressure of the subpoena.and of the continuance thereof by the direction of the district attorney and his assistant. No effort was ever made to set aside the service of the subpoena. Defendant admits in his affidavit that his presence in this jurisdiction on October third, fourth and eleventh was the result of the subpoena and the direction thereafter given in compliance with his admitted duty to obey the same and he had no other business here than to obey the subpoena, for as he says: I was in New York solely in obedience to said subpoena, and was leaving New York after obeying said subpoena when said attempted service of papers was made upon me.”

Defendant being in this jurisdiction under compulsion by law, the privilege from liability for other criminal and civil prosecution, eundo, morando et redeundo which attaches to ] those who voluntarily come within the jurisdiction of the court' does not apply. This distinction was pointed out in Netograph Manufacturing Co. v. Scrugham (197 N. Y. 377), where it' was stated that as the reason for the rule creating the privilege was to encourage voluntary attendance upon courts and to expedite the administration of justice, the reason failed where the witness or suitor was brought into the jurisdiction of a court while under arrest or other compulsion of law, as he comes because he cannot do otherwise, and the reason failed as well unless the person claiming the privilege is a free moral agent who may come into or depart from the jurisdiction as he pleases.

Applying this reasoning to the case at bar, it is evident that when the subpoena had been served upon defendant he was no longer free to remain or depart as he pleased, but his presence here was compulsory so long as the subpoena remained in force. Admittedly, he was here on October eleventh in obedience to the subpoena and he was here by compulsion and not by choice. The service of the summons upon him on that day was, i therefore, proper.

The order appealed from will be reversed, with ten dollars • costs and disbursements, and the motion to vacate and set aside the service of the summons denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Scott and Miller, JJ., concurred.

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