
    Thorp v. Adams.
    
      (Supreme Court, Special Term, New York County.
    
    May 26, 1890.)
    Writs—Service of Processt-Non-Resident Witness.
    Defendant, a resident of Massachusetts, came to New York for the purpose of testifying before a committee of the legislature. When he arrived he learned that the committee would not sit until four days later, and he remained until the meeting of the committee, and testified before it! As he was leaving the committee room process in an action brought in New York was served ón him. Held, that the service should be set aside.
    Action by Laura M. Thorp against Thomas Adams. Defendant moves to cet aside service of process on him made while he was in the state as a witness.
    
      E. E. Price, for plaintiff. John J. Adams, for defendant.
   Lawrence, J.

I cannot distinguish this case from that of Matthews v. Tufts, 87 N. Y. 568, in which case the defendant stated in substance that he was a resident of Boston, and came to the city of New York for the purpose of attending at the first meeting of creditors of one Mathews, a bankrupt, the husband of the plaintiff, held there before a register in bankruptcy; and that the defendant attended said meeting solely as a creditor and witness to prove certain claims against said bankrupt, and to participate in the choice of an assignee, and that, while attending as such witness, and about 15 minutes after the meeting had adjourned, tile “summons in this action was served on the defendant.” The court of appeals, Rapallo, J., in delivering the opinion, says: “This immunity of a defendant and non-resident of the state does not depend upon statutory provisions, but is deemed necessary for the due administration of justice, and is not confined to witnesses, but extends to parties as well, and is abundantly sustained by authority." In this case the defendant swears that he has resided since 1886 in the city of Boston, and that he came to this state on May 15,' 1890, for the purpose of giving his evidence as a witness before the committee on cities of the senate of the state of New York, which was, and had been for some time previous, taking evidence in the city of New York, under a resolution of that body; that the committee on cities did not sit on Thursday, May 15th, but announced that it would sit on Monday, May 19th, and that he therefore remained in said city until the meeting of the committee on the 19th inst., and then attended before it, and gave his evidence; that as he was leaving the room in which said committee held its session, he was served with the summons herein, by a person who had been sitting in the court-room during the time that he was giving his evidence; that his sole and only object in remaining until the 19th inst. was because the committee had adjourned until that date. It is sought in this case to show that, although the residence of the defendant may have been in the city of Boston, his domicile was in the city of New York. It appears from the papers that, in consequence of the differences between the defendant and his wife, they separated from each other about the year 1886, and that since that time he has resided in the city of Boston. Under these circumstances it would seem that the case of Matthews v. Tufts, supra, is directly in point. There, as already stated, the party served had come on solely as a creditor and witness to prove certain debts and claims against the estate of the bankrupt, and lie was served shortly after the adjournment of the meeting at which he had attended. Yet the court held that he was entitled to his discharge, and set aside the summons. I have read with attention the brief filed on the part of the plaintiff in opposition to this motion, but am constrained to say that I find nothing in it or in the affidavits read which conflicts with the decision in the case of Matthews v. Tufts, supra, and therefore the motion to set aside the summons will be granted, with costs.  