The respondent is a national bank located at Corry, in the State of Pennsylvania. An action was pending commenced by it to recover on a promissory note made by Weston Brothers, as makers, . to the order of one Bamsey and which had been discounted at said bank. Weston Brothers were a copartnership consisting of Abijah, Orrin and William W. Weston, and they were made defendants as were the indorsers, and all were personally served. On the 10th day of December, 1893, answer was served on behalf of the defendants Abijah and Orrin Weston. None of the other defendants answering, an order was granted on the motion of the plaintiff in the action to sever the same and judgment was entered on the 29th day of December, 1893, against the non-answering defendants, in accordance with said order, and a trial had on the merits resulting in a verdict for the .defendants Abijah and Orrin Weston, which was subsequently reversed by the Court of Appeals (Citizens Nat. Bank v. Weston, 162 N. Y. 113). Prior to the trial a motion was made on behalf of the said answering defendants for leave to serve a supplemental answer, setting up the entry of the judgment against William W. Weston, one of the said joint makers, in bar to the further prosecution of the said action. Said motion was denied at Special Term in the exercise of its discretion and its order was affirmed by the General Term (Citizens Nat. Bank v. Weston, 81 Hun, 84). The first action was set down for retrial at the Trial Term at Little Valley, N. Y., September 10,1900, and the vice-president and two other directors of the bank, all residents of Pennsylvania, went from Corry as witnesses in the action. On the summons, complaint and other papers, a temporary injunction was granted enjoining the prosecution of the original action until further order in the premises. A copy of this injunction order was first served on the attorney for the bank and later in the .day with the summons, complaint and affidavits on Hr. Barlow, who was vice-president and a director of the bank.
A motion was made at Special Term to vacate the service on the ground that Hr. Barlow, being in the State solely for the purpose of testifying in the action, was exempt from the service of process. The plaintiff claimed that this privilege had been waived and the Special Term referred the matter . to a referee h> take proof and *147return the evidence with his opinion thereon. The referee heard the proofs and submitted a report in which he made specific findings of fact. It appears from this report that after the restraining order was served on the attorney for the bank, Mr. Barlow and the three other non-resident witnesses crossed the street to the clerk’s office to ascertain if the judgment mentioned in the order had been entered. Failing to find it, they made inquiries concerning it of Mr. Waring, who represented the Westons, and who told them that the judgment was entered in Erie county and explained how it came about and added, as the referee finds, “ that he had some papers which he wished to have served on some officer of the defendant ” and asked if they were directors, and Mr. Barlow replied that they were. The referee then continued: “ Some one of the four persons above named spoke up and said in the presence and hearing of the said Barlow that he, the said Barlow, was the vice-president of the bank and to make service on him, or that the service could be made on him.
“ No denial or objection was made to this by any ol the three officers of the bank there present, and service was made on the said Barlow as vice-president of the defendant.
“ The conversation that preceded the service of the papers indi cate, in my judgment, an assent to such service on the part of the said Barlow and a waiver of the statutory prohibition as to service of process on a non-resident of the State, present in the State as a witness.”
Mr. Waring, in his narration of what occurred at the time the process was served, after testifying that Mr. Barlow or one of those with him stated that they were all officers, added: “ Some one spoke up and said that Mr. Barlow was the vice-president of the bank and to serve on him, and I directed the sheriff to make the service on him, and he made it right there; ” Mr. Waite, the deputy sheriff who served the papers, testified that one of those with Mr. Barlow said, “ Serve it on him (Barlow), he is vice-president.” Mr. Dawson, one of the directors of the bank, testified that one of their party said to Mr Waring “ that Mr. Barlow was the vice-president of the bank and that the papers could be served on him.” It is, therefore, evident that the proofs supported the finding of fact by the referee, that the service was made upon the vice-president after what was equivalent to an invitation to make the same. *148The rule is well settled that while a non-resident is in the State as a witness he is exempt from service of process. (Matthews v. Tufts, 87 N. Y. 568; Parker v. Marco, 136 id. 585; Sizer v. Hampton & Branchville R. R. Co., 57 App. Div. 390.) This' exemption is a personal privilege and can be waived like any other favor or benefit enuring to a party. The officers of this bank were in this State to enforce a demand against the appellant, who is the executor of the said Abijah Weston. Weston had not been allowed to interpose a defense which, it is claimed, existed in his favor. The appellant thereupon sought to make that defense the subject-matter of a new action, and if it was available to lnm with the effect claimed for it, the original cause of action of the respondent would be extinguished.
In some States the service of process upon a foreign corporation carrying on its business within the State is effective “ in all litigation pertaining to that business, independently of any statute authorizing service of process.” (13 Am. & Éñg. Ency. of Law [2d ed.J, 895.) It is unnecessary to go to that extent in the present case to . uphold the efficaby of the service. But the principle referred to indicates that the service of process upon a plaintiff in a new action which names him as defendant, but which relates to the same subject-matter as the pending action, does not require any straining on the part of the court to relieve him from the service.
The officers of the bank were voluntarily in the State. The vice-president had in his hand the injunction order which had been served upon the attorney for the bank. He knew its contents, and was informed by the attorney who procured it that an officer had the papers for service upon whicli the injunction order was granted, and which contained the facts referred to in the order as soon as an officer of the defendant could be found. One of the directors then said that Barlow .was vice-president and service could be made upon him, and the attorney adopted the suggestion and caused the papers tó be served. If these intelligent men representing the bank intended to shield themselves by their immunity from service then was the time to assert the privilege instead! of soliciting such service.
With a judgment in favor of the Original defendants which was only recently reversed there was no occasion for the present action *149and consequently Weston or his executor is not chargeable with laches.
The order should be reversed, with ten dollars costs and the disbursements of this appeal, and the motion to dismiss denied, with ten dollars costs.
All concurred except Bümsey, J., who dissented in an opinion.