Murphy v. Sweezy

¶1The service of the summons must be set aside, and the order of arrest vacated in this action. The defendant, a non-resident, came into the state simply to answer the charge made against him, and while he was necessarily here, waiting an examination, the papers in this action were served upon him. The immunity from service or arrest, under circumstances such as appear in this case, applies to a party as well as a witness, as appears from the remarks of Allen, J., in Person v. Grier, 66 N. Y. 126, referring to what was decided in Van Lieuw v. Johnson, (not reported;) Matthews v. Tufts, 87 N. Y. 568. It does not sufficiently appear that the proceedings before the magistrate were adjourned at the request of the defendant, but it seems that the adjournment was required by the inability of the complainant to attend, and I do not see how, in view of the condition of the bail-bond, it can be said that the defendant was allowed a reasonable time before service to leave the state. Motion granted.