§ 23-25 Privilege from Arrest L. 1909, ch. 14 is exempt from arrest, and all persons connected with the second arrest of such prisoner are guilty of a trespass and liable to an action for unlawful arrest. Love v. Humphrey, (1832) 9 Wend. 204. § 23. No person to be arrested in civil proceedings without a statutory provision.—A person shall not be arrested in a civil action or special proceeding, except as prescribed by statute. The writ of ne exeat is abolished. This section was formerly section 548, Code Civil Procedure. The right to arrest in an action, the circumstances under which this right may be exercised, and the persons who may be arrested are covered by Code Civ. Proc. §§ 549-555. The decisions applying and construing these sections are therefore not within the scope of this work. Policy of statute. The policy of the statute is to abolish imprisonment for debt. Kessler v. Levy, (1895) 11 Misc. 275, 23 N. Y. S. 260, affirmed (1895) 147 N. Y. 700, 42 N. E. 723, reargument denied 12 Misc. 116, 33 N. Y. S. 54. To the same effect, see National Bank of Commonwealth v. Temple, (1870) 39 How. Pr. 432; McGovern v. Payn, (1859) 32 Barb. 83; Mann v. Chrestopulos, (1903) 87 App. Div. 222, 84 N. Y. S. 372. Writ of ne exeat abolished.—The writ of ne exeat having been abolished by statute, an appeal bringing up the question of want of authority in the court to issue the writ will not be considered, where a motion to vacate the writ has been passed upon and general relief given the defendant. Collins v. Collins, (1880) 80 N. Y. 24. § 24. Privilege from arrest of officers of courts of record. An officer of a court of record, appointed or elected pursuant to law, is privileged from arrest, during the actual sitting, which he is required to attend, of a term of the court of which he is an officer, and no longer; but an attorney or counselor is not thus privileged, unless he is employed in a cause, to be heard at that term. This section was formerly section 565, Code Civil Procedure. § 25. Witness exempt from arrest.-A person duly and in good faith 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, is privileged from arrest in a civil action or special proceeding, while going to, remaining at, and returning from, the place where he is required to attend. An arrest, made contrary to the provisions of this section, is absolutely void and is a contempt of the court, if any, from which the subpœna was issued, or by which the witness was directed to attend. This section was derived from Code Civ. Proc. §§ 860, 863. Waiver of exemption. A defendant is exempt from arrest where he is attending a trial as a witness, under subpoena, but this exemption is personal, L. 1909, ch. 14 Privilege from Arrest $ 25 and may be waived. Here, "the defendant waived his privilege by putting in bail. Had he claimed his privilege, the officer before whom he was under examination had power to discharge him out of custody. The defendant also waived his privilege by giving notice by his attorney of retainer in the cause, and demanding a copy of the complaint. If he wished to preserve his right to move to discharge the arrest, the attorney should have appeared specially." Stewart v. Howard, (1853) 15 Barb. 26. See to the same effect, Petrie v. Fitzgerald, (1864) 1 Daly 401. A witness while attending a trial to which he has been summoned is exempt from service of process in a civil action, but this privilege of exemption is personal and will be regarded as waived if not claimed at the first opportunity. Sebring v. Stryker, (1894) 10 Misc. 289, 24 Civ. Proc. 126, 30 N. Y. S. 1053. In Mackay v. Lewis, (1876) 7 Hun 83, it was held that a person attending as a witness is privileged from arrest upon civil process, and waived no rights by giving bail. Voluntary attendance of witness.- Where a witness has attended a trial, under subpoena, has been examined and dismissed, and attends the next day upon request of counsel, he is not exempt from arrest. "The statute only extends to the witness the exemption when he is attending under compulsion of a subpœna, and as in this case the defendant's attendance as a witness before the referee was entirely voluntary, he could not claim the exoneration from arrest given by the statute." Hardenbrook's Case, (1859) 8 Abb. Pr. 416. Privilege of nonresident witness or party.- A nonresident attending a creditors' meeting in a bankruptcy proceeding cannot be subpoenaed as a witness in another action, for "in proceedings in bankruptcy the due administration of justice requires that all the creditors should be free to attend, without interference by service of process of any kind." Even though the defendant was attending the meeting as a party or as attorney for other parties, he is still privileged from arrest. Matthews v. Tufts, (1882) 87 N. Y. 568. A nonresident who attends court for the purpose of proving a will, to which he is a subscribing witness, is privileged, while returning home, from arrest by process issued out of the Mayor's Court. Norris v. Beach, (1807) 2 Johns. 294. A nonresident cannot be served with process in a civil suit while attending a court in this state as a witness. "It is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home. This rule is especially applicable in all its force to suitors and witnesses from foreign states, attending upon the courts of this state. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses while attending court could be molested with process." Person v. Grier, (1876) 66 N. Y. 124, 23 Am. Rep. 35. A nonresident, who is attending court as a witness in an action to which he is a party, is privileged, while in attendance and returning home, not only from arrest, but from service of process for the commencement of any action against him. "Nonresident witnesses cannot be reached by the process of the courts, and their attendance must therefore be voluntary; but if, while so attending, the courts allow them to be subject to actions to be commenced in the courts of this state, and thus subjected to the necessity of remaining or returning to litigate suits in a foreign forum, a most serious obstacle is interposed to their voluntary attendance. It would be intolerable that the creditor of a foreign witness residing in the same state with him should be permitted to follow him when he comes as a witness in our courts, to harass him with suits at a distance from his means of defense." Merril v. George, (1862) 23 How. Pr. 331. To same effect, see Sanford v. Chase, (1824) 3 Cow. 381. A nonresident, while in attendance upon a court of this state as a witness, is not only exempt from arrest, but is also exempt from being served with § 26 Privilege from Arrest L. 1909, ch. 14 process in a civil suit which does not authorize an arrest, and if so served, he is entitled to have such summons set aside absolutely and discharged. "It cannot be expected that citizens of other states will voluntarily appear as witnesses in this state, if they incur the hazard of being sued in our courts, while in good faith attending solely for the purpose of being witnesses." Sever v. Robinson, (1854) 3 Duer 622: 66 A resident of another state, while attending a United States court as witness, cannot be served with process in a suit against him personally, or as executor or administrator. "It cannot be questioned by this court but that the Court of Appeals has established a general principle of law that the resident of a foreign state cannot be served with process for the commencement of an action against him while attending in this as a witness before one of the courts held herein." Graften v. Weeks, (1878) 7 Daly 523. But in Jenkins v. Smith, (1878) 57 How. Pr. 171, it was held that nonresidents of the state are not exempt from service of summons without arrest, while attending a United States court in the state in a suit to which they are parties, and that such exemption from process applied only to nonresident witnesses. The privilege of suitors in such a case, it was held, was from arrest only, and not from the service of civil process. A resident of a foreign state is privileged from service of summons in a civil case or arrest in such case while he is attending an involuntary bankruptcy proceeding instituted against him in this state. The fact that the United States District Court has adjudged, in a habeas corpus proceeding by the defendant, that the arrest was not a violation of the Bankruptcy Act, does not preclude a state court from passing on the question of the validity of such arrest, as such court has the right to determine the propriety and regularity of the service of its own process. Goldsmith v. Haskell, (1907) 120 App. Div. 403, 105 N. Y. S. 327. Witness in supplementary proceedings.- A defendant is privileged from arrest while returning home from attendance as a witness in supplementary proceedings instituted by a judgment creditor against him, and if arrested is entitled to be discharged absolutely, because the provisions of section 860 of the Code of Civil Procedure have been violated, and he cannot be deprived of the right to recover damages for such arrest. Scofield v. Kreiser, (1891) 61 Hun 368, 21 Civ. Proc. 294, 16 N. Y. S. 126. Resident witness.- A resident witness is exempt only from arrest while attending for examination, but not from the service of process. Nonresident witnesses are entitled to be discharged absolutely. Frisbie v. Young, (1877) 11 Hun 474. § 26. Action against officer making arrest of exempt person. -An action may be maintained, by the person arrested, against the officer or other person making an arrest contrary to the provisions of the last section, in which the plaintiff is entitled to recover treble damages. A similar action may also be maintained, in a like case, by the party in whose behalf the witness was subpoenaed, or the order procured, to recover the damages sustained by him, in consequence of the arrest. But a sheriff, or other officer, or person, is not so liable, unless the person claiming an exemption from arrest, makes, if required by the sheriff or officer, an affidavit, to the effect that he was legally subpoenaed or L. 1909, ch. 14 Equal Rights in Places of Public Accommodation, etc. § 40 ordered to attend, and that he was not so subpoenaed or ordered by his own procurement, with the intent of avoiding arrest. In his affidavit he must specify the court or officer, the place of attendance, and the cause in which he was so subpoenaed or ordered. The affidavit may be taken before the officer arresting him, and exonerates the officer from liability for not making the arrest. This section was derived from Code Civ. Proc. §§ 863, 864. Only party making arrest liable. In case of the arrest of a privileged person, only the person making the arrest is liable. "It is the obvious and inevitable construction of the statute (§§ 863 and 864) that the action is authorized only against the person making the arrest. Had the liability imposed been intended to comprehend the plaintiff and his attorney, the law would have so declared in terms, instead of suffering such a severe penalty to lurk in the ambush of an equivocal implication." Kreiser v. Scofield, (1894) 10 Misc. 350, 24 Civ. Proc. 170, 31 N. Y. S. 23, reversing (1894) 9 Misc. 200, 29 N. Y. S. 685. Form of action. The action in such a case must be under the statute, and not for false imprisonment. "At common law, an arrest of a privileged person is voidable only, not void; does not constitute a trespass, and so is unavailable and insufficient as foundation of an action for false imprisonment." Kreiser v. Scofield, (1894) 10 Misc. 350, 24 Civ. Proc. 170, 31 N. Y. S. 23, reversing (1894) 9 Misc. 200, 29 N. Y. S. 685. ARTICLE 4 EQUAL RIGHTS IN PLACES OF PUBLIC ACCOMMODATION AND AMUSEMENT Section 40. Equal rights in places of public accommodation or amusement. 41. Penalty for violation. § 40. Equal rights in places of public accommodation, resort or amusement.-All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages or privileges thereof, or directly or indirectly publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages and privileges of any § 40 Equal Rights in Places of Public Accommodation, etc. L. 1909, ch. 14 such place shall be refused, withheld from or denied to any person on account of race, creed or color, or that the patronage or custom thereat, of any person belonging to or purporting to be of any particular race, creed or color is unwelcome, objectionable or not acceptable, desired or solicited. The production of any such written or printed communication, notice or advertisement, purporting to relate to any such place and to be made by any person being the owner, lessee, proprietor, superintendent or manager thereof, shall be presumptive evidence in any civil or criminal action that the same was authorized by such person. A place of public accommodation, resort or amusement within the meaning of this article, shall be deemed to include any inn, tavern or hotel, whether conducted for the entertainment of transient guests, or for the accommodation of those seeking health, recreation or rest, any restaurant, eating-house, public conveyance on land or water, bath-house, barber-shop, theater and music hall. Nothing herein contained shall be construed to prohibit the mailing of a private communication in writing sent in response to a specific written inquiry. Amended by L. 1913, ch. 265. This section before the amendment read as follows: "All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating-houses, bath-houses, barber-shops, theaters, music halls, public conveyances on land and water, and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens.” The section as incorporated in the Consolidated Laws was section 1 of L. 1895, ch. 1042. The Civil Rights Act of 1895, ch. 1042, applied only to "citizens." Penal Law, § 515, relates to "discrimination against person or class in price of admission." Statutes securing equal rights in places of public accommodation: see 9 Ann. Cas. 69; Ann. Cas. 1912B 860; 9 L. R. A. (N. S.) 601; 19 L. R. A. (N. S.) 90; 52 L. R. A. (N. S.) 744; application of civil rights statutes to barbers, 15 Ann. Cas. 265; humiliation as element of damages for exclusion, 14 L. R. A. (N. S.) 1242. Discrimination against colored persons by insurance companies: see INSURANCE LAW, § 90. 209 The purpose of the amendment of 1913 was to give greater efficacy to the policy of the original statute, to forbid the accomplishment of the discrimination barred by the statute, not only by a direct exclusion, but also by the indirect means specified. Woollcott v. Shubert, 217 N. Y. 212, 111 N. E. 829, wherein the court said: "The debates in the present case conclusively show that the cause which led to the passage of the act of 1913 was the practice of the proprietors of some of the places designated in the act to advertise or notify the public and individuals that the advantages and privileges of those places would be refused to persons on account of race or creed, thereby evading indirectly the effect of the act of 1895, that the practice was deemed disgraceful and mischievous, and that the purpose of the act was |