« PředchozíPokračovat »
$406. Affidavits defectively entitled.
It shall not be necessary to entitle an affidavit in the action, but an affidavit made without a title, or with a defective title, shall be as valid and effectual for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made.
a. Where an affidavit was entitled supreme court, instead of court of appeals, the court of appeals held it to be defective (Clickman v. Clickman, 1 N. Y. 611).
b. An affidavit entitled in the "county court," for a motion for retaxation of costs, &c., in proceedings for "forcible entry and detainer," commenced before a county judge, and brought into the supreme court by_certiorari, comes within this section and is sufficient (People v. Townsend, 6 How. 178).
c. On a motion to vacate an order, where the affidavits intelligibly refer to the action, an objection that the affidavits are entitled in the wrong court will be disregarded (Blake v. Locy, 6 How. 108).
d. The entitling an affidavit, made before the action is commenced, in a suit (which under the former practice was fatal), may now be disregarded, under sec. 176 of the code, as not affecting the substantial rights of the adverse party (Pindar v. Black, 4 How. 95; see City B'k v. Lumley, 28 How. 397).
e. This section does not apply to a notice of motion (1 Code Rep. 98), nor to proceedings on mandamus (The People v. Dikeman, 7 How. 124).
f. The title of an affidavit embraces the name or style of the court, as well as the names of the parties. Hence an error in the name of the court, when it is certain that the opposite party has not been misled by it, is to be disregarded (Bowman v. Sheldon, 5 Sand. 657).
g. Where a deponent is a marksman, the fact of the affidavit having been read over to him, and his understanding it, should be stated in the jurat (Haynes v. Powell, 3 Dowl. Pra. Cas. 599).
h. Affidavits should contain a venue-a venue being an essential part of an affidavit (see Cook v. Staats, 18 Barb. 408), see ante, 262, a.
Computation of Time.
§ 407. Time, how computed.
The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last. If the last day be Sunday, it shall be excluded.
a. In the computation of time, upon service of notice of trial (except when the service is by mail, see § 412), the day of service is excluded, and the first day of term is included. This section establishes a general rule in such a case, notwithstanding the language in § 256 (Easton v. Chamberlain, 3 How. 412; Dayton v. McIntyre, 5 How. 117; Bissell v. Bissell, 11 Barb. 96).
b. A notice served on the 14th for the 16th, is a notice of two days (Ball v. Mander, 19 How. 468; Columbia Turnpike Road v. Haywood, 10 Wend. 422). Where an order was entered on 27th of May, and notice of appeal was served on 27th June,-held to be in time, that is, within 30 days (Gallt v. Finch, 26 How. 193). A five days' notice served on Wednesday for the following Monday, is a good five days' notice. The intervening Sunday cannot be excluded (Taylor v. Corbiere, 8 How. 385; Easton v. Chamberlain, 3 How. 412; King v. Dowdall, 2 Sand. 131; see ante, p. 504, c). Where the last day falls on Sunday, the day following is the last day of limitation (Taylor v. Corbiere, 8 How. 385). Where an act is to be done after the expiration of thirty days, it cannot be performed until the 31st day (Judd v. Fulton, 4 How. 298).
c. As to computing time (see Phelan v. Douglass, 11 How. 193; Pulling v. The People, 8 Barb. 384; The People v. N. Y. Cent. R. R. Co. 28 Barb. 284): and as to not including Sunday in the computation when it is the last day (see Campbell v. Internat. Life Ass. Soc. 4 Bosw. 298). Bills and notes falling due on Sunday, are payable on Monday, see Laws 1870, ch. 370.
d. Additional time.-An order granting additional time does not commence to run until the time thereby extended would have expired, had no order been made (Schenck v. McKie, 4 How. 247). Thus, where the time to answer would have expired on the 8th of October, and on the 1st of October an order was made, for twenty days additional time to answer, it was held that the time to answer was thereby extended until the 28th of October (ib.; see contra, Simpson v. Cooper, 2 Scott, 840).
e. As to computing time for publication of legal notices, see section 425.
Notices, and Filing and Service of Papers.
SECTION 408. Notices, &c., how served.
409. Service, how made.
Service by mail.
411. The like.
412. Double time where service by mail.
413. Notice of motion, &c., where personally served.
Service of papers where parties reside out of the State.
417. Service on attorney.
When this chapter does not apply.
$408. Notices, &c., how served.
Notices shall be in writing; and notices and other papers may be served on the party or attorney, in the manner prescribed in the next three sections, where not otherwise provided by this
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, §§ 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, b, 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 (1 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. Ins. 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 (Mc Gown v. Leavenworth, 2 E. D. Smith, 25). This is never limited to less than the same day (b.); 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.
8411. 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 (Rowell 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).
b. 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, b).
§ 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).