Defendant was convicted of unlawfully violating the provisions of section 352 of article 23-A of the General Business Law (known as the Martin Act), in that he willfully failed and neglected to obey a subpoena lawfully issued by the Attorney-General of the State, with which he was personally served.
He contends on appeal from the judgment of conviction, on the merits, that he did not willfully refuse to obey the command of the *51subpoena, but endeavored to procure a postponement of the hearing, a former session of which he had attended and that he was unable to communicate with the Deputy Attorney-General, who had theretofore examined him; that he subsequently appeared; that his examination was had and he testified in full concerning the matter under investigation.
We do not think that the subsequent appearance for examination of the witness constituted a waiver of his default, if such it were, in failing to respond to the subpoena. The offense occurred upon his failure to attend at the time mentioned in the subpoena. We find, however, that the Attorney-General hairing failed to tender to the defendant the lawful fees prescribed by law for a witness’ attendance, his failure to attend did not consitute a misdemeanor under the so-called Martin Act. The Martin Act does not provide for any mode or method of serving a subpoena and we conclude that the provisions relating to subpoenas and their enforcement contained in the Civil Practice Act must be applied, otherwise the method of compelling attendance of a witness and the mode of service would find no rule to support the procedure in such instances.
The Attorney-General having failed concededly to tender the subpoena fees as required under section 404 of the Civil Practice Act, the defendant was not guilty of the misdemeanor charged and should not have been found guilty.
The judgment of conviction should be reversed, the information dismissed and defendant discharged.
Finch, P. J., and Sherman, J., concur; Merrell and Martin, JJ., dissent.