People ex rel. Slaight v. Potter , 6 N.Y. St. Rep. 753 ( 1887 )

Barnard, P. J.

The right of a party to subpoena a Witness, when the subpoena is returnable forthwith, is undoubted. Still the witness in such a case is to be considered. He must be allowed time to obey by means of ordinary methods. The witness was subpoenaed at Green-point, about 11:30 A. m., of June 17, 1886, to appear at the court house in Brooklyn forthwith. It was a journey of about an hour and a half. The witness promptly obeyed and when he arrived at the court house the court had adjourned. It seems that the judge remained in the court room after the adjournment. ■

The witness, when he was informed that the court had adjourned, returned to his home. Some hour or more thereafter the plaintiff’s attorney caused the relator to be called by the calendar clerk. The witness failed to answer because the court had adjourned, at least so far as the trial of issue was concerned.

The witness was not bound to wait after that time.

The witness should not, therefore, be deemed to be- in contempt, and the order should be reversed with costs .and disbursements.

Dykman, J., concurs; Pratt, J., dissents.