Weston v. Citizens National Bank

Rumsey, J. (dissenting):

The defendant is a foreign corporation. One Barlow, who was its vice-president, had occasion on the 10th of September, 1900, to go to Little Valley in the county of Cattaraugus-as a witness to attend the trial of an action in which the respondent was defendant. While he was there, actually in attendance upon the court for that purpose, the summons and injunction order in this action were served upon him. A motion was made to vacate the service. There was considerable dispute as to the facts upon the motion, and the matter was referred to a referee to take proofs and to report the same with his opinion to the court. The referee reported the fact that in his judgment the service of the papers was not within the statutory prohibition, and that the motion should be denied, but when the case was brought before the court at Special Term, it overruled the referee’s opinion and granted the motion.

We think that there can be no doubt that this action of the court was proper. It is not denied that Barlow, upon whom the service was made, was the vice-president of the defendant and was in attendance at the trial of the action at Little Valley for the purpose of protecting the interests of his bank. The rule is not denied that when an officer of a corporation has gone into a foreign jurisdiction, for the purpose of attending a litigation there pending, he is exempt from the service of process upon him while he is there engaged in the business which brought him, and for a reasonable time thereafter. (Clark v. Grant, 2 Wend. 257; Sizer v. Hampton & Branchville R. R. Co., 57 App. Div. 390.)

The only question was whether Barlow had waived the -immunity which he possessed. Passing the question whether he was at liberty to waive it, which we do not think is of importance, we think there can be no doubt that, upon all the evidence, there was nothing which would warrant any one in supposing that he was willing that the *150service should be made upon him. It appeared that when the matter was spoken of some one. said that Barlow was the vice-president of the corporation and that service of the summons and injunction might be made upon him. Barlow denies that he said it or that he was aware that it was said, and no one pretends to testify that it was said by him that the papers might be served on him or that he was aware that any such statement had been made. Clearly the facts thus shown, did not constitute an invitation that the service might be made upon him, or a waiver of the immunity which the law granted him.

There is no pretense that there was any laches in making this motion. The service was made on the 10th of September, 1900, and the motion to vacate the service was made within five days thereafter. We can see no reason why the service should be permitted to stand if ever, under any circumstances, a non-resident is to be given the immunity to which he is entitled, to attend the trial of an action in this State.

The order should be afñrméd, with ten dollars costs and disbursements.

Order of Special Term reversed, with ten dollars costs and disbursements ; motion to set aside service of process denied, with ten dollars costs.