« PředchozíPokračovat »
with section 173 of the code of 1849 (now, in substance, section 174), and as limiting the powers conferred by that section. Crittenden v. Adams, 3 Code Rep. 145, and note to section 173 of the code.
2. It seems that omitting to include a copy of the jurat in the copy of affidavit served, does not render the proceedings irregular. Graham v. McCoun, 1 Code Rep. N. S., 43.
See Supreme Court Rule 20.
Section 406. Affidavits defectively entitled, valid.
$ § 406. [367.] Existing suits. Affidavits defectively entitled, valid.
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.
This section is identical with section 367, in the code of 1848.
b. " This provision relates, I suppose, to the naming of the parties, and not the name of the court in which the matter is pending, or the proceedings is to be had.” Per Bronson, Ch. J., in Clickman v. Clickman, 1 Code Rep., 98. And where an affidavit was entitled supreme court, instead of court of appeals, the court of appeals held it to be defective. . Ib.
c. An affidavit entitled in the county court,” sor 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 Pr. R., 178.
d. On a motion to vacate an order, where the affi lavits intelligibly refer to the action, an objection that the affidavits are entitled in the wrong court will be disregarded. Blake v. Locy, 1 Code Rep. N. S., 406.
e. 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 s. 176 of the code, as not affectiug the substantial rights of the adverse party. Pindar v. Black, 2 Code Rep., 53.
f. This section does not apply to a notice of motion. 1 Code Rep., 98.
g. This section does not apply to proceedings on mandamus. The People v. Dikeman, 7 Pr. R., 124.
h. 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. And where it was objected to an affidavit that it was entitled in the supreme instead of the superior court, and it was admitted there was no other suit between the parties, the court said, “ Following the words of the code, I think I am bound to say that this affidavit is just as valid aud effectual as if it were duly entitled. As this is the only suit between the parties, the plaintif could not have been misled by the error in the name of the court. He kuew at once that it was a clerical mistake. He knew that the affidavit refers to this action, and was meant to be used in support of this motion. I cannot regard the observations of Bronson, J., in Clickman v. Clickman (1 Coms., 610), as a positive decision of the court of appeals, for in that case the error in the name of the court was in the notice as well as in the affidavit, and it was truly said that such an error is not helped by the code. Here the notice is correct, and by its accuracy demonstrates and corrects the mistake in the affidavit to which it refers. Nor can I consent to so narrow a construction of section 406 as to limit its application to the cases in which the error or defect is in the names of the parties. The title of an affidavit, I think, embraces its entire heading, that is, the name or style of the court as well as the names of the parties; and to give effect to the intention of the legislature, the words defective title must be understood in their broadest sense ; that is, as equally applying whether the title be inaccurate as merely incomplete, or as positively erroneous. The plaiu meaning of the code, it seems to me is, that an affidavit is in all cases to be deemed sufficient as to its form which refers intelligibly to the action or proceeding in which it is made ; and the question as to its admissibility is therefore, settled when the court is satisfied that the party upon whom it was served could not have been misled.” 16., per Duer, J.
Computation of Time.
SECTION 407. Time, how computed.
$ 407. [368.] Ecisting suits. 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, 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 section 256. Easton v. Cham. berlain, 3 Pr. R., 412; Dayton v. McIntyre, 3 Code Rep., 164; 5 Pr. R., 117.
b. Where an order was granted, giving a respondent ten days further time to serve an affidavit on an appeal from a justice's court, and such order was dated and served Ist March, 1849, and the affidavit was not served until Monday, the 12th,-held, that the affidavit was served in due time. Truar v. Clute, 7 Leg. Obs., 163.
c. A notice served on Saturday, for Monday, is not a notice of two days. Whipple v. Williams, 4 Pr. R., 28. Sunday should be excluded in computing time, where the notice is less than a week. 16. But in King v. Dowdall, 2 Sand. 131, the court said, We know of no rule or principle by which Sunday is to be excluded from the computation, where it is an intermediate day, and we supposed the law ou the subject was settled. The law is established here, that Sunday must be computed, when it is an intermediate day. And per Hand,'J., Nor is Sunday to be excluded in the computation, except in those cases where an act is to be performed within a certain length of time, and the last day for performance falls on a Sunday, and not when that day merely intervenes the notice and the time when an act is to be done on a specified day. Easton v. Chamberlin, 3 Pr. R., 412.
a. The 407th section prescribes the manner of computing time, in all cases where any act is to be done within a limited time. That is, the first day (of service) is excluded and the last day included. Therefore, a five days' notice served on Wednesday for the following Monday, is a good five days' notice. The intervening Sunday cannot be excluded. Where the last day falls on Sunday, the day following is the last day of limitation. (See 3 Pr. R., 412.) Taylor v. Corbiere, 8 Pr. R, 385.
b. 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 Pr. R., 298.
6. 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, 3 Code Rep., 24; 4 Pr. R., 247. Thus, where the time to answer would have ex. pired 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. 1b.
d. As to computing time for publication of legal notices, see section 425 of this code.
Notices, and filing and service of papers.*
Notice and other papers, how served on party or attorney.
When and how served by mail.
$408. [369.] Existing suits. 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 act.
e. The words "party or attorney” do not include the “clerk.” See note to seotions 327 and 411.
f. 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 his office or abroad on other business. Lansing v. McKillup, 7 Cow., 416.
g. Service on a Sunday, of a notice or other papers, is irregular and void. Field v. Park, 20 Johns. R., 140,
* See ante, page 149, b.
$ 409. [370.] E.cisting suits. 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 au " attorney at law.” And does not include an “ agent,” or “attorney in fact." Weare v. Slocum, 1 Code Rep., 105.
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
, ? Cai. R., 101.
c. Where a party makes the best service the circumstances of the case will admit, and follows it up promptly by a regular service with notice of the facts, the service will be deemed sufficient. Falconer v. Ucoppel, 2 Code Rep., 71.
d. This section does not apply to the service of a summons. Heller v. Heller, 1 Code Rep. N. S., 309.
$ 410. [371.] Existing suits. When and how served 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 postoffice 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, 3 Code Rep., 24; 4 Pr. R., 246.
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. 16. Lawler v. Saratoga Mut. Ins. Co., 2 Code Rep., 114; Crittenden v. Adams, 1 Code Rep., N. S.,
21; Gibson v. Murdock, 1 Code Rep., 103 ; Radcliffe v. Van Benthuysen, 3 Pr. R., 67; Van Horne v. Montgomery, 5 ib. 238 ; Jacobs v. Hooker, 1 Barb., 71; Rowell v, M. Cormick, 1 Code Rep. N. S., 73.
a. A paper deposited by an agent of the attorney making the service, in a postoffice 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, 3 Code Rep., 24; 4 Pr. R., 246; Peebles v. Rogers, 5 Pr. R., 208; 3 Code Rep., 213.
b. 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 Pr. R., 312.
c. The service of a paper by mail is good, although deposited in the post-office on the last day for service, aster the mail has closed, if otherwise made in conformity to the statute and the rules of the court. Noble v. Trotter, 3 Code Rep., 35; 4 Pr. R, 322; Radcliffe v. Van Benthuysen, 3 Pr. R., 67; Schenck v. McKie, 3 Code Rep., 24; 4 Pr. R., 246.
d. By the person making the service" is meant the attorney on whose behalf it is done, and not an intermediate agent employed by him. Schenck v. McKie, supra. In one respect the code is more stringent than the late rule of 1847, it requires ibat there shall be a regular communication between the two places, to make service by mail available. Ib.
e. Where service of a paper is delayed until the day on which a default for the want of it may regularly be taken, and the attorney without knowledge of any service takes the default on that day, he will be regular, though the default was in fact taken after the paper was served. Brainard v. Hanford, 6 Hill, 368.
f. Accordingly where an affidavit to prevent an inquest was served on the second day of the circuit by leaving it at the office of the plaintiff's attorney, no one being in at the time, and the plaintiff's attorney took an inquest a few inoments asterward, but without knowing that the affidavit had been served, held that he was regular. 1b.
g. An affidavit to prevent an inquest sometimes may and at other times should be served in a different manner to that which is required in relation to other papers. Ib.
h. An irregularity in the service is waived by the paper served being retained and acted upon, Georgia Lumber Co, v. Strong, 3 Pr. R., 246; and see 1 Ib. 240; 2 Ib. 246; and it should be returned within a reasonable time. McGown v. Leavenworth, 3 Code Rep., 151. 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 Pr. R., 133.
See Supreme Court Rule 5.
$ § 411. [372.] Ecisting suits. The same.
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.
i. The“ place of residence" must be understood to mean the name of the postoffice to which the papers are to be directed. And for the purposes of this section the attorney may decide where is bis place of residence, by his endorsement on the papers. Rowell v. McCormick, 5 Pr. R., 337.
j. The term " at his place of residence” is to be deemed to relate to the postoffice, and not to any particular locality in a town or city. Thus when a defendant's attorneys 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 beld good service, although it did not reach the defendant's attor. neys. Oothout v. Rhinelander, 10 Pr. R., 460.