Opinion
July 13, 1909.
Clarence Winter, for the appellant.
Louis Marshall and Abraham Benedict, for the respondent.
The defendant is a resident of the State of Ohio. He was indicted in the county of New York on a charge of conspiracy. In March, 1909, trial on said indictment was had and defendant voluntarily came from the State of Ohio to the county of New York for the purpose of defending himself thereon and appearing therein. The trial lasted several days and was concluded on March twenty-sixth, at about four o'clock P.M., upon the rendering of a verdict in defendant's favor. After the conclusion of the trial there was not time that afternoon for the defendant to obtain a suitable train for Ohio and he stopped at a hotel for the night. On the next morning at about nine o'clock the summons and complaint herein were served upon him. He moved to set aside such service on the ground that it was made upon him while he was attending a court of the State as a party.
Under the circumstances, he did not remain an unreasonable length of time before starting to return to his residence. If he had been in attendance as a party or a witness upon a civil action, it would have been entirely proper to set aside the service of process made upon him. ( Goldsmith v. Haskell, 120 App. Div. 403.) But a different rule applies to a party in the State attending his own trial on a criminal charge. ( Williams v. Bacon, 10 Wend. 636; Adriance v. Lagrave, 59 N.Y. 110; Browning v. Abrams, 51 How. Pr. 172; Slade v. Joseph, 5 Daly, 187.) To be sure, in all the above cases the defendant had been extradited and brought into the jurisdiction against his will. On being released, however, on the criminal charge by acquittal or otherwise, civil actions were brought against the several defendants, and motions were made to set aside the service on the ground that they had not had opportunity to return to their homes, and it was held that they were not entitled to exemption and that service of civil process upon them was proper. In Williams v. Bacon ( supra) NELSON, J., says: "The defendant (being in the State under a criminal charge) is not within the rule privileging suitors and witnesses from arrest (in a civil action) whilst going to, attending at or returning from court." In Adriance v. Lagrave ( supra) the subject was exhaustively treated, for the Special Term refused to set aside the service of civil process, and on appeal to the General Term (1 Hun, 689) the order was reversed, but the Court of Appeals reversed the order of the General Term and reinstated that of the Special Term.
If a party who is compelled to come to the jurisdiction by warrant and extradition is not exempt from service of civil process, it is difficult to see how one who comes voluntarily to attend his own trial and to save his bondsmen is exempt from service.
In Sander v. Harris (14 N.Y. Supp. 37) it is intimated that if the defendant came to the State voluntarily for the purpose of appearing on a criminal charge against himself, he would be entitled to exemption from service of civil process, but that question was not involved in the case. In Lucas v. Albee (1 Den. 666), however, the decision went on the theory that it made no difference whether the defendant came into the State voluntarily or was brought in from another State to answer the criminal charge against himself.
The ground upon which the decisions are based is that arrest upon a criminal charge or conviction thereunder does not suspend civil remedies against a person, and hence if the rule of exemption were applied and the party charged was convicted and sentenced to a long term of imprisonment, the creditor could have no remedy until the term of imprisonment had expired and the defendant had had a reasonable opportunity to return to his home. If the defendant had been extradited from the State of Ohio, clearly, under the decisions, he would not have been exempt from service of civil process. The fact that he voluntarily appeared without extradition, we do not think entitled him to such exemption.
The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, McLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.