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When papers need not be be served on
$414. (Am'd 1849.) 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.)
b. 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 a 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 an swered, 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 Bow, 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).
e. "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.
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 Sheriff's and Coroners.
§ 419. (Am'd 1849.) Duty of sheriff 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
mons and complaint, previous to the service thereof; but if he serves them without prepayment, he cannot retain them, and refuse to make a return because his fees are not paid (Wait v. Schoonmaker, 15 How. 460).
a. Where the coroner is the defendant in the action, a writ of attachment against the sheriff must issue to elisors in the first instance (Reg. v. Sheriff of Glamorganshire, 1 Dowl. Prac. Cas. N. S. 308).
b. The coroner may call to his aid the power of the county, in a proper case, in executing an order of arrest, in an action in which the sheriff is a party (Slater v. Wood, 9 Bosw. 16).
Accountability of Guardians.
$ 420. Guardians not to receive property until security given.
No guardian appointed for an infant shall be permitted to receive property of the infant, until he shall have given sufficient security, approved by a judge of the court or a county judge, to account for and apply the same, under the direction of the court.
See Rule 62, et seq.
Powers of Referees.
$421. Powers of Referees.
Every referee appointed pursuant to this act shall have power to administer oaths in any proceeding before him, and shall have generally the powers now vested in a referee by law.
See ante, note to § 273.
SECTION 422. Papers lost or withheld, how supplied. 423. Where undertakings to be filed.
Judgment on bond and warrant of attorney, executed before
425. Time for publication of notices, how computed.
$422. Papers lost or withheld, how supplied.
If an original pleading or paper be lost or withheld by any person, the court may authorize a copy thereof to be filed and used instead of the original.
See note to section 416; and Renouil v. Harris, 1 Code R. 125.
Where undertakings to be filed.
The various undertakings required to be given by this act must be filed with the clerk of the court, unless the court expressly provides for a different disposition thereof, except that the undertakings provided for by the chapter on the claim and delivery of personal property, shall, after the justification of the sureties, be delivered by the sheriff to the parties respectively for whose benefit they are taken.
a. See note to § 222, and Rule 4, and 2 R. S. 190, §§ 149, 150, omitted from 4th edit. R. S., said, however, to be still in force (Cook v. Dickinson, 2 Sand. 691; Wilde v. Joel, 15 How. 321).
b. In an action on an undertaking, on its production at the trial, its delivery to the party for whose benefit it was taken, pursuant to § 423, will be presumed (Bowdoin v. Coleman, 3 Abb. 431; see Coleman v. Bean, 3 Keyes, 94).
c. Although the provision of the revised statutes (2 R. S. 190), which is presumed to be in force, that the chancellor shall direct the delivery of any bond, executed under the provisions of that article, to the person entitled to the benefit thereof, for prosecution, whenever the condition thereof shall be broken, or the circumstances of the case shall require such delivery, yet the court might well decline the delivery of an undertaking on file in these cases (see Code, § 423), as an inspection to draw the complaint is all that is necessary; and upon the trial, the clerk can be subpoenaed to produce it in case of dispute (Wilde v. Joel, 15 How. 320).
$424. Judgment on bond and warrant of attorney, executed before July 1, 1848.
Upon any bond and warrant of attorney executed and de
livered before the first day of July, 1848, judgment may be entered in the manner provided by sections 382, 383, and 384, upon the plaintiff's filing such bond and warrant of attorney, and the statement, signed and verified by himself, in the form prescribed by section 382.
See Allen v. Smillie (12 How. 156; 1 Abb. 354).
$425. Time for publication of notices, how computed.
The time for publication of legal notices shall be computed so as to exclude the first day of publication, and include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publication.
a. Notices or advertisements which by law are required to be published in any public newspaper published in this State, may be proved by the affidavit of the printer, or foreman of the printer of such newspaper (Laws of 1835, c. 159; and see §§ 138 and 407, ante, and Laws 1859, ch. 252).
See Rule 73, and note.
§ 426. (Am'd 1869.) Laws of other States and governments, how proved.
Printed copies of statutes, code, or other written laws, and of the proclamations, edicts, decrees, and ordinances, by the execu tive power of any State or territory or foreign government, when printed in books or publications purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law, in the courts and judicial tribunals of such State, territory, or government, shall be admitted by the courts and officers of this State on all occasions, as presumptive evidence of such laws, proclamations, edicts, decrees and ordinances. The unwritten or common law of any other State or territory or foreign government, may be proved as facts by parol evidence, and the books of reports of cases adjudged in these courts may also be admitted as presumptive evidence of such law.
b. See Laws of 1845, p. 326; Laws of 1846, pp. 204, 303; Laws of 1858, pp. 498, 500; 6 Wend. 483; 2 ib. 411; Dall. 412; 9 Cranch, 122, n; 1 Stark. Ev. (ed. 1842) 232, n, 2 ; 1 Phill. Ev. (Cow. & H. ed. 1843), 383; 3 ib. 1056, n, 708).
c. The charter of the city of New York may be read as evidence from a volume printed by authority of the common council, whether it was printed prior or subsequent to the act of April 17th, 1832. The charter may be so read on a trial involving the title to lands, the statutes making no distinction in regard to the purposes for which it may be read. Such proof of the char ter is prima facie only (Howell v. Ruggles, 5 N. Y. 444; see Laws 1832, p. 251).