Parker v. Marco.

action as in the Federal court. Judge WHEELER, in very strong terms, condemned the procedure, and held that the defendant was absolutely privileged from service, and that the conduct of the plaintiff in causing such service to be made was a contempt of court, and could be punished as such. It seems that in such a case the party has a twofold remedy. He may move in the court whose privilege has been violated to punish the party in that court who has been guilty of such violation, or he may move in the court out of which the process has been improperly issued. to vacate it, and the motion will be granted.*

* See for the practice, Brett v. Brown, 13 Abb. Pr. N. S. 295. The provisions of our Code of Civil Procedure respecting this privilege are so framed as to refer only to persons subpoenaed or ordered to attend for the purpose of being examined, in a case where his attendance may lawfully be enforced by attachment or by commitment.

By section 865 this applies to the case of a person who, "by. the terms of a judgment," is ordered to attend.

These provisions would be enforced not only by the court whose privilege is invaded, and by the court whose process is used: to invade the privilege, but a discharge may be ordered by a justiceof the supreme court in any part of the State, or by a county judge or superior city court judge within his district (§862); the the arrest is void; is a contempt; and the party whose witness was thus interfered with may recover damages of the party causing the arrest or of the officer making it; and the witness may recover treble damages (§ 863) unless the witness on request of the party or sheriff fails to make affidavit to the facts showing his privilege.

In the case of WRIGHT 7. BENNETT (N. Y. Court of Appeals, 1889.) not reported] it was held: (1) That where effort to avoid service was hown, the throwing of the process into the hall by the process-server on being refused admission, the process falling near the feet of the defendant and his attention being called to it, might be held sufficient personal service.

(2) That treating an attempted personal service as ineffectual for the purpose of applying for an order for substituted service, is not a conclusive election, but the plaintiff may, notwithstanding, still claim that the personal service was effectual.

Appeal by defendant from an order of the General Term of the VOL. XXIX.-5

Wright v. Bennett.

In Plimpton v. Winslow (supra), the suit was pending in the United States circuit for Massachusetts. By agreement of counsel testimony was taken before a special

Supreme Court, Second Department, affirming an order of the Special Term denying defendant's motion to set aside the service of a summons, and the judgment founded thereon; and also from the judgment of said General Term affirming such judgment.

Action for libel brought by Russell Wright against James Gordon Bennett. Defendant moved to set aside a judgment by default entered against him in such action, founded upon an alleged personal service of the summons, and for other relief upon the following grounds: (1) that there was no sufficient proof of personal service of summons and complaint; (2) that an order had been made for the service of the summons by publication, and it had been so served, and the order of publication had never been revoked and that pending said order, and upon the same state of facts, plaintiff could not claim there had been a personal service; (3) that if there had been a personal service, it was waived by subsequently obtaining an order for service by publication; (4) that after making a service by publication, plaintiff could not, without notice to defendant, claim that there had been a previous personal service, and proceed in such service as if no order for publication had previously been made; (5) that the court had been misled by the withholding from it the fact that an order of publication had previously been granted and was still in force.

The affidavit of the person who made the alleged personal service of the summons stated the service to have been made as follows: "I went to the address (The New York Yacht Club Rooms), and inquired for said defendant of a servant in the hallway, and while speaking with said servant the said defendant came out of an adjoining room into said hallway. I immediately started towards said defendant, but was prevented from reaching him by the said servant, who placed himself in front of me and held me back. I called to the said defendant, who was in the act of returning to said room, stating that I had a summons to serve on him, at the same time making an effort to free myself from the said servant. Seeing I could not do this in time to intercept said defendant, I threw the papers (i. e., the summons and said copy of said complaint) at said defendant, at the same time telling him that I served him with said papers. The papers did not actually touch defendant's person, but they fell within a few feet of him. I left said papers lying where I had

Wright v. Bennett.

examiner in New York city, and while defendant was attending before the examiner he was sued by the plaint. iff in the United States circuit for New York. Judge

thrown them. When I called to said defendant, he stopped for a moment and said, 'I can't attend to those matters here; call at my office, to-morrow, and I will see you,' or words to that effect. I know the person served as aforesaid, to be the person served as aforesaid," etc.

In support of such service of the summons, there were also further affidavits showing that prior attempts had been made to serve defendant, but that he had avoided service, and had subsequently departed from the State with an intent to avoid service.

Upon the motion to set aside such service, the defendant substantially admitted the facts as the service as above stated, and showed that on the same state of facts plaintiff had procured an order of publication and had served the summons pursuant tɔ it. It also appeared that by the rules of the New York Yacht Club, that the club house was accessible only to persons introduced by members or servants of the club, and that other persons were not admitted.

The Special Term, in denying defendant's motion, rendered the following opinion:

CULLEN, J.-I think a valid service of the summons and complaint was effected on the defendant. The court should protect the citizen from violence or other misconduct on the part of the process-server, but the plaintiff had the right to institute his action against the defendant, and the latter's persistent efforts to avoid service of the summons as shown by the affidavits, and practically conceded by his counsel, justified efforts on the part of the processserver that might be otherwise improper, and require the court to avoid the service.

Motion to set aside judgment denied with ten dollars costs, with leave to defendant to apply to open the default.

At the General Term, the order of the Special Term was affirmed, DYKMAN and PRATT, JJ., concurring therein, without opinion.

BARNARD, P. J. (dissenting)—The papers show that the defendant was at a private club house in New York. The process-server applied for admittance and was refused. He attempted to go in notwithstanding the refusal, and was prevented. The admittance would have been against the rules of the club. While this contention was going on, the defendant appeared at a door at the end of

Wright v. Bennett.

BLATCHFORD set aside the service saying: "It is very clear that the motion must be granted. The defendant attended as a party before the examiner. The regularity

the hall and inquired what the trouble was about, and was informed that the person who wanted to get in wished to see him. The defendant replied that he could see no one then, but would be at his office the next day. The process-server then threw a paper at the defendant, which fell within a few feet of him. The attendant at the door showed him out and threw the paper after him into the

street.

This was not a good personal service, and the cases which are cited to the effect that a service need not be personal, in reality, but only be such that the party be apprised of the action, such as Hiller v. Burlington & Missouri R. R. Co. (70 N. Y. 223), and the cases cited in the opinion. The cases are all based upon a service other than personal, but which were by law, equivalent to a personal service. The person who served the process was a trespasser in attempting to enter the house after being forbidden. The defend

ant was guilty of no wrong in declining to receive him there. The attendant at the door only did his duty in preventing an unauthorized entry in his house, and throwing a summons within a few feet of the defendant was not a sufficient service.

Neither party considered the service personal. The processserver attended the next day at the defendant's office to serve him, and the defendant did not keep his promise to be there. In April, 1885, the summons was placed in the hands of an officer for service, and subsequently, on November 23, 1885, the plaintiff obtained an order for substituted service, which was made, and the papers on this service were placed in an attorney's hands. In May, 1886, the plaintiff obtained an order to assess his damages as upon a personal service of summons, and a default of answer. The action of the plaintiff in obtaining an order for substituted service was entirely at variance with the fact of personal service, and the defendant properly relied on the fact.

The order should be reversed, and motion to set aside service granted without costs to either party on appeal.

Defendant appealed to this court.

Joseph H. Choate and Theron G. Strong (John Townshend, attorney) for appellant.-I. No valid personal service was made, because in attempting to make it the process-server committed a trespass, first, in invading a private house, and second in assaulting the

Wright v. Bennett.

of the examination was recognized by the attendance of the plaintiff. The defendant had a right to attend upon it in person, whether he was to be himself examined as a

defendant (citing Cercle Francais de l'Harmonie v. French, 44 Hun, 123; Mason v. Libby, 1 Abb. N. C. 354; S. C., 51 How. Pr. 436; People v. Hubbard, 24 Wend. 369; Curtis v. Hubbard, 4 Hill, 437; Crocker on Sheriffs, § 350; Davison v. Baker, 24 How. Pr. 39).

II. The facts failed to show a valid personal service (citing Van Rensselaer v. Palmetier, 2 How. Pr. 24; Van Rensselaer v. Petrie, Id. 94; Davison v. Baker, 24 Id. 39; Robbins v. Clemmons, 4 Ohio St. 285; People v. The Judge, etc., 38 Mich. 310; Craig v. Gisborne, 13 Gray, 270; Fitzgerald v. Salentine, 10 Met. 436; Hiller v. Burlington & Missouri R. R. Co., 70 N. Y. 223).

III. The order of publication was granted a year after the alleged personal service was made, and is based on affidavits which stated and recited the fact that personal service on the defendant had not been made and could not be made. The order was an adjudication to the effect that personal service had not been and could not be made, and estopped the plaintiff from afterwards claiming that there had been personal service (citing Kennedy v. N. Y. Life Ins. etc. Co., 32 Hun, 35; Chase v. Lawson, 36 Id. 221; Smith v. Mahon, 27 Id. 40; Wortman v. Wortman, 17 Abb. Pr. 66; Peck v. Cook, 41 Barb. 549; Rawdon v. Corbin, 3 How. Pr. 416; Niles v. Vanderzee, 14 Id. 547).

Chauncey Shaffer and A. N. Weller (Robert Seabury, attorney) for respondent.-I. As a general rule any service will be sufficient which renders it reasonably probable that the party proceeded against will be apprised of the action, and have an opportunity to defend (citing Hiller v. Burlington & Missouri R. R. Co., 70 N. Y. 223; Pope v. Terre Haute Car Co., 87 Id. 137; Gibbs v. Queen Ins. Co., 63 Id. 114; Southwell v. Marryatt, 1 Abb. Pr. 218; Hilton v. Thurston, Id. 318; Putnam County Chemical Works v. Jochen, Daily Reg. Feb. 18, 1886; Downes v. Witherington, 2 Taunt. 243; Bulkley v. Bulkley, 6 Abb. Pr. 307; Borden v. Borden, 63 Wis. 374; Norton v. Mead, 4 Sawyer, 618; Slaight v. Robin, 13 N. J. Law, 340; Hagers v. Danforth, 20 Barb. 16; Lagraves Case, 14 Abb. Pr. (N. S.) 333.

II. The service by publication did not invalidate the prior service (citing Dresser v. Wood, 15 Kan. 344).

THE COURT OF APPEALS affirmed the order of the General Term which affirmed the order of the Special Term, denying the motion