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23. - after attorney's death.]— If the attorney of record dies before judgment service made upon his surviving partner, or up). his executor or administrator, is not good.76 Notice to appoint a new attorney should be given to the party."
24. Service on counsel.]— If there is an attorney of record, service on counsel will not dispense with necessity of service on the attorney.78
Where a counsel who is to try a cause signs his name as attorney, both before and after the decease of the attorney of record, he may be deemed the attorney by the opposite party."
rendered in a court of record, must be given to the adverse party or the person proposed to be made the adverse party, personally, or, if personal service of notice cannot be made with due diligence, a court order should be taken directing the manner of service. (N. Y. Code Civ. Pro., $ 1913.)
Notice of appeal must be served upon the attorney for the adverse party. (N. Y. Code Civ. Pro., $ 1300.) Or, if the attorney is dead or has been removed, and notice of removal has been served, and another attorney not substituted, or, if for any reason notice of appeal cannot with due diligence be served on the attorney for the adverse party within the State, it may be served on the respondent in the manner prescribed by law for serving it upon an attorney, and if such service cannot with due diligence be made within the State, a judge of the appellate court may direct the mode of service
. (N. Y. Code Civ. Pro., & 1302.) And it seems that the same principles are applicable by analogy to sanction the respondent in his mode of service on the appellant. (Hickox v. Weaver, 15 Hun, 375.)
Notices of motions to set aside final judgment, generally, for irregularity or error in fact, if a person entitled to notice cannot with due diligence be found within the State, may be served in any manner which the court or a judge thereof may direct. (N. Y. Code Civ. Pro., § 1289.)
Notice of a motion to set aside a final judgment for error of fact not arising upon the trial, when made by the party against whom the judgment is rendered, or his heir, devisee, executor, or administrator, may be served upon the attorney of record for the party in whose favor the judgment is rendered, with like effect as if served upon the party. (N. Y. Code Civ. Pro
, $ 1287.) Notice being also given to the occupant if real property be affected.
Notice of application, after judgment to cancel lis pendens, may be served as directed or approved by the court. (N. Y. Code Civ. Pro., & 1674.)
Notice of an application to discharge a judgment against a bankrupt, on proof of his discharge in bankruptcy, must be given to the judgment-creditor, or his attorney of record in the judgment, or, if either cannot be found, then by publication. (N. Y. Code Civ. Pro., § 1268.)
76 Bacon v. Hart, 1 Black (U. S.), 38. Service of citation for writ of error made upon the executrix of the deceased attorney of record, and on his law partner. Held, that as his character and duties as such did not devolve on his own personal representatives after his death, the service was insufficient, and the writ was therefore dismissed.
77 See ATTORNEY. 78 Jackson r. Larroway, 2 Johns. Cas. 114; 8. c., as Larroway v. Lewis
, Colo. & C. Cas. 126. (Holding notice of taxation served on counsel, instead of attorney, irregular, though it was of costs of putting off trial.)
79 Davis, P. J., Cambridge Valley Nat. Bank v. Matthews, 1 N. Y. Monthly L. Bull. 10.
25. Service on attorney's partner.]— Service on the attorney's partner, if not also one of the attorneys on record, is not safe service unless made at the attorney's office; although it might be sustained by showing the partner's authority in the particular case. But the law does not recognize partnership alone as sustaining service.
26. Death of client. ]— The death of the client terminates the authority of the attorney, and he cannot, as of right, thereafter, until the issue of letters, if necessary, and the substitution of the successor as a party, serve a notice or paper in the cause, other than a notice of the fact of death, etc., that may prevent the other party from proceeding unawares.81 The attorney's interest in the costs of the action will not sustain a judgment for costs entered after the client's death.82 So the death of the adverse party pre cludes effective service on his attorney.
And when a personal representative has been appointed, the latter may proceed by a fresh attorney if he choose, so far as he can without prejudice to the lien of the former attorney.
The former attorney has not, by virtue of his original retainer, a right to act or receive service for the representatives or the heirs.
If, however, the adverse attorney assumes to treat the attor. ney whose power is revoked by death of his client, as still authorized, he cannot object on that ground to his being heard in response to a notice so served.se
80 Bacon v. Hart, 1 Black (U. S.), 38 (dictum); see also Lansing . McKillup, 7 Cow. (N. Y.) 416.
81 Balbi v. Duvet, 3 Edw. (N. Y.) 418. Here the solicitor for a client, residing in France, filed a bill; but such client was then dead. As soon as he knew the fact he notified the defendant's solicitor, but the latter continued proceedings. The court stayed them on motion, and gave him costs only to the day he had notice of the death. Bellinger v. Ford, 21 Barb. 311; Lapaugh r. Wilson 43 Hun, 619, 6 N. Y. St. Rep. 624; Piering v. Henkel, 2 N. Y. Supp. 413, 18 St. Rep. 823.
82 Piering v. Henkel, 2 N. Y. Supp. 413, 18 St. Rep. 823. 83 Adams v. Nellis, 59 How. Pr. 385.
84 Gleason v. Dodd, 4 Metc. 333; Beach v. Gregory, 2 Abb. Pr. (N. Y.) 203; Amoré v. La Mothe, 5 Abb. N. C. (N. Y.) 146; Skinner v. Busse, 38 Misc. 265, 77 N. Y. Supp. 561, 11 Anno. Cas. 157. 85 Putnam v. Van Buren, 7 How. Pr. 31. 80 held even where the attorney was executor. Judson v. Love, 35 Cal. 463. 86 Matter of Beckwith, 90 N. Y. 667.
27. Assignment.]— The assignment of a judgment recovered has the same effect as death would have upon the powers of the assignor's attorney. 87
III. SERVICE ON CLERK. 28. Service on clerk of court. ]— Where a statute or rule requires service on the clerk, as is usually the case for notice of appeal, delivery at the office to the deputy,88 or other person in charge, is enough. Service is sufficiently made by filing.
The statute allowing service by mail does not, by implication, apply to service on the clerk. If a paper is sent him by inail, it must reach him within the time limited for service on him ; 90 hence admission of service should be asked for, which will show the date of actual receipt.
IV. SERVICE PERSONALLY, OR AT OFFICE OR RESIDENCE OF
ATTORNEY. 29. Personal Service.]— Service on the attorney of record is good at common law," and under the New York Code, whererer and at whatever hour made; 92 and where two attorneys were in partnership, the business being done in the name of one, service of papers on either, whether in his office or not, may be good.* Otherwise of the individual business of a partner.
The present New York statute authorizing service not personal, provides for service at an attorney's office during his absence, but does not preclude service on him elsewhere.
87 Robinson v. Brennan, 90 N. Y. 208; Foster v. Bookwalter, 152 N. Y. 166, 46 N. E. Rep. 299. (Assignment, with attorney's knowledge, of subject. matter regarding which attorney was employed.)
88 Sanxey v. Iowa City Glass Co. 68 Iowa, 542, 27 N. W. Rep. 747.
89 See Filing, pp. 53–55, of this volume. And such is the express provision of the New York Code ($ 1300), i. e., that service of notice of appeal upon the clerk be made by filing it in his office.
90 Morris v. Morange, 17 Abb. Pr. 86, 26 How. Pr. 247; aff'd, 31 How. Pr. 639. (Motion to strike from the files granted.) Crittenden v. Adams, 1 Code Rep. (N. S.) 21, 5 How. Pr. 310. (Notice of appeal mailed on last day and received by clerk two days thereafter, held defective service.)
91 And it was so held also of service on his partner in the street.
Lansing v. McKillup, 7 Cow. 416. Here the service (copy declaration) was served on the partner, who was not attending to this particular case, while away from his office. Motion to set aside the default for want of a plea, denied.
92 & 796. Even in open court. Nat. Press Intell. Co. v. Brooke, 18 Misc. 373, 41 N. Y. Supp. 658. See paragraph 8, supra.
30. At office, on clerk, partner, or person in charge. ]— At common law, service on the clerk of the attorney at the office of the attorney is good, whether the attorney be present or not.96 One of the reasons for employing a clerk is to have the receipt of papers attended to, not only in the attorney's absence, but without interrupting his engagements when he is present.
Under the New York statute permitting service on the clerk in the attorney's absence — the common practice is to serve by leaving with a clerk, irrespective of the principal's presence, and this is certainly good service if the attorney is not at the time discovered in the same room.
It is not necessary to search the offices for him if the clerk is present.
The service, in the absence of the attorney, may be made on his partner in the office, or on any person having charge thereof."
In the absence of the attorney the clerk represents him, not only for purposes of accepting service, but of waiving formal objections; 1 and the attorney is at once chargeable with notice of the contents of the papers so served.?
31. Office closed.] - Service under New York statute, when the attomey's office is closed, by putting under the office door,3
*5 Quincy v. Foot, 1 Barb. Ch. 496. (Holding that service by delivery to the clerk at the door of the office, as he was about to enter, which he did, taking the answer in with him, is good.) S, P., Jackson v. Giles, 3 Cai. 88; Paddock v. Beebe, 2 Johns. 117.
San Jackson v. Yale, 1 Cow. 215. (Motion for judgment granted objection that the affidavit of service on clerk did not state that the attorney was either absent from home or absent from his office.)
97 N. Y. Code Civ. Pro., $ 797, subd. 2.
99 N. Y. Code Civ. Pro., § 797, subd. 2. Crook 1. Crook, 14 Daly, 298, 12 N. Y. St. Rep. 663. (An attorney having an office which has a common entrance with another attorney's office, is in charge of the latter within this section.)
But neither service on a clerk not in the office, though in the house, where be kept his office, Anon., i Cai. 73, nor in the office on a member of the family not a clerk, Salter v. Bridgen, 1 Johns. Cas. 244, was good at common law. Contra, perhaps, Wardell v. Ed 2 id. 121.
1 Power v. Kent, 1 Cow. 211. (Where the defendant's clerk received an amended replication and waived entry of rule to amend.)
2 Troy Carriage Works v. Muxlon, 16 Misc. 561, 38 N. Y. Supp. 938. (Order containing stay of proceedings.)
3 Rogers v. Rockwood, 13 N. Y. Supp. 939, 36 St. Rep. 919, 20 Civ. Pro. Rep. 212; Haight v. Moore, 36 N. Y. Super. Ct. 294; Burdett v. Lewis, 7 C. B. (N. S.), 791 (1860); 8. P., Corning v. Pray, 2 Wend. 626; Anon., 18 id. 578.
affixing to the door,' throwing through the transom over the door," or sliding through a slot in the door, is not good.
If the attorney's office is closed and fastened, service may be made between 6 a. M., and 9 P. m., by depositing the paper in a sealed wrapper, directed to him, in his office letter box, or if there be none, by leaving it at his residence within the State, with a person of suitable age and discretion.
32. Office open and empty.]— If the attorney's office is open, that is, unlocked, and empty, a paper may be served between 6 A. M. and 9 P. M. by leaving it in a conspicuous place therein, or depositing it in a sealed wrapper directed to him in his office letter box; it is immaterial that the paper failed to be received by the attorney."
33. Getting in.]— If the office be closed and locked, service by unlocking it, or procuring it to be unlocked, and leaving the paper in a conspicuous place, as if it were found open and no one were there, is not good.12
But if opened by a clerk or other person on whom service
4 Oshiel v. De Graw, 6 Cow. 63 (denying motion to set aside default on the ground that an order staying proceedings was so served).
5 Claflin v. Du Bois, 1 N. Y. Supp. 150; 14 Civ. Pro. Rep. 290, 15 St. Rep. 963.
6 Livingston v. N. Y. El. R. Co. 58 Hun, 131, 11 N. Y. Supp. 359, 19 Cir. Pro. Rep. 258 (aff'd, without opin. 125 N. Y. 695); Timolat v. Held Co., 15 Misc. 630, 37 N. Y. Supp. 221.
7 Depositing the papers loosely in the office letter box, without inclosing in sealed envelope or wrapper, and with no address, does not constitute proper service. Fitzgerald v. Dakin, 101 App. Div. 261, 91 N. Y. Supp. 1003.
8 N. Y. Code Civ. Pro., & 797, subd. 3; S. P., Lathrop v. Judivini, 2 Cow. 484.
Leaving at the attorney's residence in his absence is not good, if service can be made at his office, in the way prescribed in the section. See Duval €. Busch, 21 Abb N. C. 214, 13 Civ. Pro. Rep. 366, 13 N. Y. St. Rep. 752. Compare Taylor v. Thomas, 2 N. J. Eq. 106.
9 Haight v. Moore, 36 N. Y. Super. Ct. 294 (the affidavit of service by learing in a conspicuous place, no person being therein at the time, must state that the office was open or unlocked).
10 N. Y. Code Civ. Pro., & 797, subd. 3.
12 Vail v. Lane, 4 Hun, 653, 67 Barb. 281 (procuring the janitor to unlock the office door and leaving the paper therein).
8. P., Asinari v. Volkening, 2 Abb. N. C. 454; Haight v. Moore, 36 N. Y. Super. Ct. 294. .
Campbell v. Spencer, 1 How. Pr. 199 (even where the party serving found the key in the door and entered in this way); 8. P., Livingston o. Comstock, id. 253.