Petitioner applies to quash a subpoena served upon him by respondent on the ground that at the time he was immune from the service of process in this jurisdiction. Petitioner is a resident of California and came to New York for the purpose of pleading to an indictment pending against him. He arrived in this city on January 6, his arraignment was completed on January 8, and he was served with the subpoena on January 10, about midday.
There are certain general principles in regard to immunity from service which are not in dispute between the parties and it is advisable to clear them from the discussion at the outset. Petitioner was assisting the administration by his voluntary appearance in this jurisdiction, and he is immune from the service of process during the period of his necessary attendance at court and for a reasonable time thereafter (Thermoid Co. v. Fabel, 4 N Y 2d 494). The grave question is the purpose embraced in the reasonable time. There is no dispute but that a reasonable time for departure, that is, obtaining accommodations, packing and the like, had expired before service was effected. Petitioner, however, claims — and for the purpose of this application we may take it as established — that he remained for the purpose of consulting with his counsel as to his defense to the indictment to which he had pleaded not guilty. It is not disputed that the time between the plea and the service was reasonable for this purpose.
*453The question is fairly posed, therefore, whether one who remains in the jurisdiction after he could have reasonably departed, for the purpose of consulting with counsel, is immune from service. The question has not been passed on in this jurisdiction. Concededly, the exemption extends to all court hearings without regard to whether presence of the party is necessary ov even usual. Instances would be the argument of an appeal and the talcing of a deposition of an adverse party (Parker v. Marco, 136 N. Y. 585; Chase Nat. Bank v. Turner, 269 N. Y. 397). In such situations it is the very rare case indeed where the party’s advice to counsel is of any benefit to the litigation. And exemption was granted without inquiry as to whether the case before the court fell into that category of exceptional cases. From this the only logical deduction is that a party has a right to be present at any hearing in his own matter regardless of the legal utility of his presence, and immunity is correlative with that right. So that it cannot be said that the right to consult with counsel provides any basis for the immunity.
It follows that immunity in this instance can only be allowed if the rule is extended. Before such an undertaking, it is well to consider the implications. For the extension, it may be considered that it is highly desirable to induce those charged with crime here to submit themselves to the jurisdiction of our courts (Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 380). On the other hand, the potentialities for abuse are very great. The narrow question has arisen in just two other jurisdictions, and these considerations have led to exactly contrary results. In Michigan, in a case very like the instant case in its salient facts, Jacobson v. Hosmer (76 Mich. 234) immunity was granted. And the rule was extended in Grundy v. Refior (312 Mich. 428) where the defendant served came into the jurisdiction for the sole purpose of consulting with counsel as to the next step to be taken in another litigation. On the other side of the picture, extension of the rule was refused in Georgia (Vaughn v. Boyd. 142 Ga. 230). The grounds were that a person with many or wide interests would enjoy perpetual immunity because he could always find occasion to consult with counsel whenever he wanted to enter the jurisdiction. Cases in other jurisdictions skirt the question involved but do not directly meet it.
Concededly the question involved is one of degree. No objection could be made to an arrival in the jurisdiction sufficiently in advance of the court hearing to permit consultation with counsel to prepare for the hearing to come. That is not the situation here, where the consultation succeeded the court appearance and presumably had reference to developments that were not in *454immediate prospect. In theory, the immunity is the same as that enjoyed by a local resident while actually in attendance at a court proceeding in which he is involved. A foreign resident should enjoy no greater immunity than the fact of his nonresidence requires, namely, a reasonable opportunity to come and go. One cannot be unaware of the recognition given to the importance of consulting with counsel, especially in criminal cases, but to clothe it with immunity from service is to interfere with the orderly process of other proceedings.
While the extension of the rule involved here is far from extreme and, indeed, may be said to be most modest, it nevertheless implies a departure to which limits cannot be put. Service and availability for service will depend on no workable rule and each case will perforce be a law unto itself. This is not desirable, and while I believe no such intention underlies the majority opinion, it is nevertheless the unavoidable consequence.
The order should be reversed and the motion denied.
Botein, P. J., Babin and Bergan, JJ., concur with Eager, J.; Steuer, J., dissents in opinion.
Order, entered on February 21, 1963, affirmed, without costs.