Opinion
June 28, 1907.
Herbert R. Limburg, for the appellant.
Felix H. Levy, for the respondents.
The defendant moved to set aside the service of an order of arrest and a summons and complaint made upon him in behalf of plaintiffs on the 26th day of March, 1907, at the city of New York, on the ground that he was a non-resident of the State, and on that day was in this State attending as a party and witness in involuntary bankruptcy proceedings instituted against himself. Such motion was denied and the appeal is from the order entered thereon.
If the defendant was in fact in attendance on the bankruptcy proceedings as a party or a witness and was ordered to so attend he was privileged from arrest in a civil action. Section 860 of the Code of Civil Procedure provides: "A person duly and in good faith 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, is privileged from arrest in a civil action or special proceeding while going to, remaining at and returning from the place where he is required to attend."
Attendance upon a bankruptcy proceeding is such attendance as gives exemption. ( Matthews v. Tufts, 87 N.Y. 568.) We think the defendant was compelled to attend for the purpose of being examined. The bankruptcy proceedings had been referred to a referee by an order directing the defendant to attend before such referee on a specified day and thenceforth to submit to such orders as the referee might make. On the twenty-third of March defendant had been examined before the referee and his evidence taken by a stenographer. Cross-examination was reserved and the proceeding adjourned until March twenty-sixth at three P.M. General order in bankruptcy No. 22 provides that testimony taken upon an examination before a referee shall be taken down in writing and when completed it shall be read over to the witness and signed by him in the presence of the referee. The testimony which the defendant had given could not be signed by him until it was transcribed by the stenographer, and it is manifest that all parties assumed that the entire proceeding was adjourned until March twenty-sixth, and that the defendant was required to be in attendance on that day either for such cross-examination as might be desired or to sign the testimony which he had already given.
The defendant had journeyed from the city of Philadelphia to the city of New York apparently for no other business than to attend upon the bankruptcy proceedings and had purchased a limited return ticket. The order of arrest was served upon him very shortly after the close of the hearing and while he was proceeding from the office of the referee to that of his attorney.
The defendant was entitled to a reasonable time to return to the place from which he had come, and the delay to consult with his attorney was not unreasonable. ( Parker v. Marco, 136 N.Y. 585. ) The defendant was, therefore, privileged from arrest and the service of the order should have been set aside.
We are also of the opinion that the defendant established that he was a resident of the city of Philadelphia in the State of Pennsylvania and that the service of the summons upon him should also have been set aside.
The defendant had been a resident of the city of New York and his wife's father and mother lived in the city of Philadelphia. In the latter part of January, 1907, the wife's mother died, and the proof showed that about the first of February following the defendant moved his wife and child and his household belongings to that city and took up his residence with his father-in-law. This is established by his own affidavit, and that of his father-in-law, and the janitress and occupants of the apartment in which he formerly resided in New York city.
This situation is not controverted except by the fact that defendant had been a resident of this State, and that after his claimed removal to Philadelphia he had been seen frequently in the city of New York. His business was that of traveling salesman for a firm having headquarters in the latter city, and the fact that he was at the place of business of his employer did not necessarily prove that his actual residence was not in another State. There was some confusion respecting the name of the street which defendant gave as the place of residence of himself and father-in-law, but it is apparent that it resulted from a mistake of the stenographer.
A resident of a foreign State, while attending a court in this State either as a party or a witness, cannot be served with process for the commencement of a civil action against him. ( Matthews v. Tufts, supra; Person v. Grier, 66 N.Y. 124; Thorp v. Adams, 33 N.Y. St. Repr. 797.)
Immediately upon his arrest defendant obtained a writ of habeas corpus in the United States District Court, asking for his discharge on the ground that the protection accorded him by section 9 of the Bankruptcy Act had been violated. That court dismissed the writ, and the respondents urge that such determination is res adjudicata and a bar to this motion subsequently made in the State court.
Conceding that a final order made upon a writ of habeas corpus is a final adjudication respecting the cause and right of detention, the refusal of the Federal court to discharge in the present instance had no such effect. The Supreme Court of the State has the right to determine the propriety and regularity of the service of its own process. The only question before the Federal court was whether or not the Bankruptcy Law had been violated. The question now for determination is whether or not the law of the State has been violated by improper service of process issued out of the State court. That a determination that process was improperly served has the effect of releasing the defendant from custody is unimportant. Besides, the Federal court had no jurisdiction certainly to determine whether or not the summons was properly served; and if service of the summons be set aside the order of arrest must fall by operation of law, because such an order can be issued only in an action and cannot stand if such action was never legally begun.
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, McLAUGHLIN, CLARKE and LAMBERT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.