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“Party or attorney" does not include the "clerk." See in note to $ 410. The notices mentioned in this section refer only to notices required by the code; it does not forbid an oral notice to produce, given in the presence of the court pending a trial (Kerr v. McGuire, 28 N. Y. 453).
b. Where two attorneys are in partnership, the business being done in the name of one, yet service of papers may be on either, whether he is in the office or abroad on other business (Lansing v. McKillup, 7 Cow. 416).
c. Where a party changes his attorney, until there is a regular substitution, notices may be served on the attorney of record (Grant v. White, 6 Cal. R. 55). On motion to set aside a judgment of divorce granted by default made two years after the judgment entered, --held the motion papers were properly served on the attorneys for the plaintiff on the action, although they had dissolved partnership, and had settled with their client (Miller v. Miller, 37 How. 1); and service of motion papers to set aside an attachment and an order for publication, were held to be properly served on the plaintiff's attorney in the action, although more than four years had elapsed since the judgment had been entered (Drury v Russell, 27 How. 130).
d. Proof of service.- Whenever it shall be necessary, on the trial of an action, or in any judicial proceeding, to prove the service of any notice, an affidavit, showing such service to have been made by the person making such affidavit, shall be received as presumptive evidence of such service, upon first proving that such person is dead or insane (Laws 1858, ch. 244).
e. Service on sheriff.—Service of any notices or other paper required to be served on a sheriff, may be served by leaving the same at the office designated by him, by a notice filed in the office of the clerk of his county, during office hours; or leaving the same, with any one belonging to such office, therein; and such service is equivalent to personal service on the sheriff, and if the sheriff has not any designated office, service may be made on the county clerk (2 R. S. 285, $S 55, 56, 57).
f. Nonresident attorney.-Service on (Laws 1866, ch. 173 ; 1862, ch. 43; post, p. 643, d).
See Rule 10; and ante, pp. 375, 6, 133, 134, 136, a ; and post, $ 418.
§ 409. Service, how made.
The service may be personal, or by delivery to the party or attorney on whom the service is required to be made; or it may be as follows:
1. If upon an attorney, it may be made during his absence from his office, by leaving the paper with his clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office; or, if it be not open so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion.
2. If upon a party, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion.
a. The attorney mentioned in this section means an attorney at law." And does not include an “agent,” or “attorney in fact” (Weare v. Slocum, 3 How. 398).
b. An affidavit of service on a clerk must state that he was in the attorney's office at the time (Jackson v. Giles, 3 Cai. R. 88; Paddock v. Beebe, 2 Johns. Cas. 117). But it need not specify the name of the clerk (Tremper v. Wright, 2 Cai. R. 101).
c. Where a party makes the best service the circumstances of the case will admit, and follows it up promptly by regular service with notice of the facts, the service will be deemed sufficient (Falconer v. Ucoppel, 2 Code Rep. 71).
d. Where a party finds the office closed, he cannot effect a regular service by having the office unlocked, and leaving the paper in a conspicuous place within (i How. 253, 200).
See ante, p. 203, c.
$ 410. Service by mail.
Service by mail may be made, where the person making the service, and the person on whom it is to be made, reside in different places, between which there is a regular communication by mail.
e. Where the service of a paper is made by mail, it must be deposited in the post-office at the residence of the attorney making the service-addressed to the person on whom it is to be served, at his place of residence, and the postage paid (Schenck v. McKie, 4 How. 246), or the papers will not be deemed to be served where deposited (Peebles v. Rogers, 5 How. 210; Van Benthuysen v. Lyle, 8 How. 312), enclosed in a wrapper or envelope (25 Wend. 677; 9 Abb. 68, n).
f. When the paper is thus deposited in the proper post-office, correctly addressed, and the postage paid, the service is deemed complete, and the party to whom it is addressed takes the risk of the failure of the mail (ib.; Lawler v. Saratoga Mut. In8. Co. 2 Code Rep. 114; Crittenden v. Adams, 5 How. 300; Gibson v. Murdock, 1 Code Rep. 103; Radcliffe v. Van Benthuysen, 3 How. 67; Van Horne v. Montgomery, 5 ib. 238; Jacobs v. Hooker, 1 Barb. 71; Rowell v. McCormick, 1 Code Rep. N. S. 73; Vassar v. Camp, 14 Barb. 341; 10 How. 460).
g. A paper deposited by an agent of the attorney making the service, in a post-office in a different town from that in which the attorney resides, is not a good service, except from the time the paper is actually received (Schenck v. McKie, 4 How. 246; Peebles v. Rogers, 5 id. 210).
h. It seems that if an answer is served by mail, and the postage is not paid, the plaintiff's attorney may return the answer, and enter judgment as for default of an answer (Van Benthuysen v. Lyle, 8 How. 382).
i. The service of a paper by mail is good, although deposited in the postoffice on the last day for service, after the mail has closed, if otherwise made in conformity to the statutes and the rules of the court (Noble v. Trotter, 4 How. 322; Elliott v. Kennedy, 26 How. 422).
j. The provisions as to the service by mail apply only to service on the parties to the action or to their attorneys, they do not apply to service on the clerk (Lansing v. Gulick, 26 How. 250; Crittenden V. Adams, 1 Code Rep. N. S. 21).
k. Waiver.-An irregularity in the service is waived by the paper served being retained and acted upon (Georgia Lumber Co. v. Strong, 3 How. 246; and see 1 ib. 240; 2 ib. 246). And it should be returned within a reasonable time (McGown v. Leavenworth, 2 E. D. Smith, 25). This is never limited to less than the same day (ib.); and when returned, the ground of objection should be explicitly stated. A statement that the service is irregular and not in compliance with certain sections of the code, is not enough (Chemung Canal Bank v. Judson, 10 How. 133).
See Rule 10 and note.
$ 411. Service by mail.
In case of service by mail the paper must be deposited in the post-office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid.
a. Place of residence-must be understood to mean the name of the post-office to which the papers are to be directed. And, for the purpose of this section, the attorney may decide where is his place of residence, by his indorsement on the papers (Rouell v. McCormick, 5 How. 337). The term “at his place of residence” is to be deemed to relate to the post-office, and not to any particular locality in a town or city. Thus, when a defendant's attorney gave notice of appearance, and demanded that a copy of the complaint should be served on them at their “office, No. 52 Grove street, in the city of New York," and the plaintiff's attorney mailed a copy of the complaint at Fonda, New York, directed to the defendant's attorneys by name, * New York,” without mentioning any street or number, it was held good service, although it did not reach defendant's attorneys (Oothout v. Rhinelander, 10 How. 460; but see Rule 20).
6. Giving notice by mail is depositing a letter containing the requisite information, properly addressed, in the post-office (Vassar v. Čamp, 14 Barb. 341).
$ 412. (Am'd 1849, 1859.) Double time when served by mail.
When the service is by mail, it shall be double the time required in cases of personal service, except service of notice of trial, which may be made sixteen days before the day of trial, including the day of service.
c. This section applies to a notice to limit the time to appeal (Dorlon v. Lewis, 7 How. 132). Where an answer is served by mail the plaintiff has forty days within which to amend his complaint (see Casson v. Whaley, 5 How. 305; Washburn v. Herrick, 4 How. 15; ante, p. 266, 6).
§ 413. (Am'd 1849.) Notice of motion, &c., when personally served.
Notice of a motion, or other proceeding before a court or judge, when personally served, shall be given at least eight days before the time appointed therefor.
d. Where motion papers for the 28th were served by mail on the 17th and came to hand on 19th Oct., and on the 20th Oct. the moving party served a notice personally that such'motion would be made on the 28th, on the papers so served by mail,-held a sufficient service (Van Benthuysen v. Stevens, 14 How. 70).
$ 414. (Am'd 1819.) When papers need not be be served on defendant.
Where a defendant shall not have demurred or answered, service of notice or papers, in the ordinary proceedings in an action, need not be made upon him, unless he be imprisoned for want of a bail, but shall be made upon him or his attorney if notice of appearance in the action has been given.
a. “This provision does not embrace provisional remedies. These are not ordinary proceedings within the sense of that term as used in this section. Though a defendant has appeared, he is not entitled to notice of an application for an order to arrest him. Neither is he entitled to notice of an application for injunction, before he has answered" (Becker v. Hager, 8 How. 69), And the service of an injunction, obtained after a defendant has appeared by attorney in the action, on the attorney instead of on the defendant, is a defective service; but it furnishes no reason for setting aside the injunction order (ib.)
6. After a defendant has appeared in the action, an application by the plaintiff for leave to amend must be on notice to the defendant (Hewett v. Howell, 8 How. 346). c. When
statute requires service of a notice on an individual, it means personal service, unless some other mode of service is specified (Rathbone v. Acker, 18 Barb. 393; McDermott v. B'd of Metro. Police, 25 Barb. 636; see, however, The People v. Walker, 2 Abb. 422).
$ 415. (Am’d 1849.) Service of papers where parties reside out of the State.
Where a plaintiff or a defendant who has demurred or answered, or gives notice of appearance, resides out of the State, and has no attorney in the action, the service may be made by mail, if his residence be known; if not known, on the clerk for the party.
$ 416. Summons and pleadings to be filed.
The summons and the several pleadings in an action shall be filed with the clerk within ten days after the service thereof, respectively, or the adverse party, on proof of the omission, shall be entitled, without notice, to an order from a judge that the same be filed within a time to be specified in the order, or be deemed abandoned.
d. The court will permit a party to file a pleading after the time limited therefor in an order to file it, if the omission be explained—as, if a copy be inadvertently filed instead of the original (Short v. May, 2 Sand. 639).
e. When a party files a pleading in obedience to an order under this section requiring him to do so, he is not bound to notify the party obtaining the order that the pleading is filed (Douoy v. Hoyt, 1 Code Rep. N. S. 286).
$ 417. Service on attorney.
Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney, instead of the party.
a. Notice of appeal should be served on the attorney of record in the court below, not on the party (Tripp v. De Bono, 5 How. 114; Flynn v. Bailey, 50 Barb, 73, and see ante, p. 639, c).
b. Where the attorney for the plaintiff in error removed from the State, and notice had been given to the party to appoint another attorney, pursuant to the statute (2 R. S. 287, § 67),-held, nevertheless, that a motion to quash the writ of error could not be made without notice thereof to the plaintiff in error (Jewell v. Shouten, 1 N. Y. 241).
c. This section, like the 414th, applies to the ordinary proceedings in the action." See ante, p. 642, a.
d. It is irregular to serve papers in a cause upon the attorney after he becomes a nonresident (Diefendorf v. House, 9 How. 243; see, however, in note to Rule 2, Supreme Court Rules, post).
See ante, p. 438, a.
$418. When this chapter does not apply.
The provisions of this chapter shall not apply to the service of a summons, or other process, or of any paper to bring a party into contempt.
Duties of Sheriffs and Coroners.
$ 419. (Amd 1849.) Duty of sherif and coroner in serving or executing process, and how enforced.
Whenever, pursuant to this act, the sheriff may be required to serve or execute any summons, order, or judgment, or to do any other act, he shall be bound to do so in like manner as upon process issued to him, and shall be equally liable in all respects for neglect of duty; and if the sheriff be a party, the coroner shall be bound to perform the service, as he is now bound to execute process where the sheriff is a party; and all the provisions of this act relating to sheriffs shall apply to coroners when the sheriff is a party.
See rule 8, and section 290.
e. A sheriff may, under the statute, demand his fees for service of a sum