Bernhard v. Rice

15 N.Y.S. 936, 68 N.Y. Sup. Ct. 184, 40 N.Y. St. Rep. 570

Opinion

Dwight, P. J.

That portion of the order appealed from was clearly un- • authorized. The summons was set aside for want of jurisdiction, it being made clearly to appear that the defendant, who was a resident of Ohio, had come within this state solely for the purpose of attending as a witness upon tlie trial of an action in tlie supreme court, and was so attending at the time tlie service in question was made upon him. He made no appearance in tile action except for tlie purpose of tlie motion to set aside the summons, $ind in tlie notice of such motion he asked only for the costs of the motion. Of course, no costs of the action accrued to the defendant. Indeed, upon the very theory of his motion, lie was never defendant in the action; no action herein was ever commenced against him; the court never acquired jurisdic. tian of him for the purposes of the action. His appearance was for the purpose of the motion only, and it is only costs of the motion which could properly be awarded against the plaintiffs. Ex parte Benson, 6 Cow. 592; People v. Judges of Madison Co., 7 Cow. 423. The portion of the order appealed from should be reversed, with $10 costs and the disbursements of this appeal. So ordered. All concur.