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within the office might be made, service on him as he goes in, in the ordinary course of his charge of the office, is good.13
V. SERVICE BY MAIL.
34. Place of mailing.]— Under the statute" allowing service of papers (other than summons or other process, and papers to bring into contempt) to be made by mailing in the post office (or a U. S. post-office box under the care of the post office) 16 of the party or attorney making the service, the mailing must be at the particular post office (or letter box) specified, 16 not that of the person mailing, if it be different from that of the party or attorney making the service.
The attorney specifying an address upon the papers served by him is concluded thereby and cannot object that that is not the place of his residence within the meaning of the statute."
Where service by mail is expressly authorized, without restriction, it may be resorted to, although the person making and the person receiving the service reside in the same town or city."
35. Wrapper.]— Under the requirement that the document must be properly inclosed in a post-paid wrapper, the wrapper is essential, and it should be a separate paper from the document, or at least separable from it, without mutilation of the document. 20
13 Quincy v. Foot, 1 Barb. Ch. 497 (although the clerk at the time of re. ceiving the paper was not yet within the office).
14 N. Y. Code Civ. Pro., § 797, subd. 1.
16 Corning v. Gillman, 1 Barb. Ch. 649, appearance ineffectual because not mailed where the solicitor mailing it resided, as required by the rule then in force.
Schenck v. McKie, 4 How. Pr. 246; s. C., 3 Code Rep. 24 (answer mailed by agent of attorney, at post office, in the place of the agent's, not of the attorney's, residence, held not to prevent default).
Hurd v. Davis, 13 How. Pr. 57, Harris, J., holding that even if an attorney whose place of business is in one town has designated his residence in another, the mailing can only be made at the latter.
17 Lord v. Vandenburgh, 6 Duer, 703, 15 How. Pr. 365; Hurd v. Davis, 13 How. Pr. 57.
18 Whitney v. Haggerty, 7 N. Y. St. Rep. 766 (answer). O'Connell v. Sutherland, 16 Abb. Pr. 460, note (notice to creditors of insolvency proceedings).
And see U. S. Nat. Bank v. Burton, 58 Vt. 426, 5 East, Rep. 253 (notice of protest).
19 Birdsall v. Taylor, 1 How. Pr. 89; compare Rathbone 1. Clark, 9 Abb. Pr. 66 n.
20 Chautauqua Co. Bank v. Risley, 6 Hill, 375, where the use for wrapper of a blank half of the sheet on the other half of which the notice was written, was held not to vitiate.
36. Postage.] -- Ile who serves by mail must pay all the postage that can be legally demanded, or take the hazard of the papers not being received. A mistake of the postmaster in not asking sufficient postage is no excuse. 21
He who is served by mail is not bound to take a letter from the post office charged with postage, though he has reason to be lieve it contains law papers, and the effect of his omission be a default of his adversary. 22
Receiving the package from the postal authorities, although before obtaining it the attorney is obliged to pay a deficiency of postage, completes a valid service.23
37. Request to return if not called for. ]- The use of a wrapper with the common indorsement used on letter envelopes to return if not called for within a specified time, is liable to abuse. It is resorted to intentionally in many cases, particularly notices to creditors to prove claims, etc., as a means of ascertaining who are not reached. But the person served by mail is not necessarily presumed to call at the office every day or week; and a direction that withdraws the paper from the course of the mail because of his absence may very easily defeat the object of service.
It is well held, however, that such a direction does not vitiate the service if it appears that the direction did not prevent the papers from coming to the hands of the person addressed.24 Sending by registered mail may prove ineffective owing to postal re strictions upon delivery.25
38. Several to one address. - If several are to be served individually, even though they be partners having the same address,
Anon., 1 Hill, 217, holding that if the required wrapper is omitted, whereby the papers were received in a soiled and damaged condition, the service is not sufficient.
21 Anon., 1 Hill, 217.
23 Appeal Printing ('o. 1. Sherman, 99 App. Div. 533, 91 N. Y. Supp. 178. So, if the attorney examines the pa per after taking it from the post office, he cannot refuse to receive it. Clark 1. McFarland, 10 Wend. (N. Y.) 634.
24 Gaffney r. Bigelow, 2 Abb. N. C. 311, rev'g 48 How. Pr. 475; approved in Manchester . Van Brunt, 2 Visc. 228, 22 N. Y. Supp. 361; Appeal Printing Co. 1. Sherman, 99 App. Div. 533, 91 N. Y. Supp. 178; S. P., Clarke t. McFarland, 10 Wend. 634.
25 See Price 1. City of N. Y., 104 App. Div. 198, 93 N. Y. Supp. 967. Or if limited by the sender to “personal delivery only” under post office rules : see Sears 1'. Tenhagen, 50 Misc. 275.
a separate paper addressed to each should be sent, 26 unless the case be such that a single joint service is all that they can be entitled to, as sometimes is the case with informal demands and notices before suit.27
39. Post office and letter-box. ]— A branch post office in the city of New York is declared to be equivalent to the general or principal post office for the purpose of mailing; 28 and for the purpose of service of papers in an action upon attorneys or parties, a regularly maintained government post-office box, under the care of the post-office of the party or attorney serving the paper, is by a recent amendment made a proper place for mailing.”
40. Double time on service by mail.]— When the person making service by mail, has a limited time, to be computed from a previous date, within which to make service, mailing on the last day of that time is sufficient ;30 but when service is required to be made a specified time before a future act or date, the mailing must be done double the time so required (except in case of notice of trial), including the day of service and excluding the day of the mailing 31 If the effect of service by mail will be to fix a time within which the adverse party may do an act, the time so allowed is double the time allowed in case of personal service.32
26 Likens v. McCormick, 39 Wisc. 313, holding summons and complaint mailed to C. H. & L. J. McCormick, not served on either.
27 Compare U. S. Nat. Bank 1. Burton & Sowles (Vt., May, 1886), 5 East. Rep. 253 (notice of protest for firm, addressed with individual names of the two partners, held sufficient).
28 N. Y. Code Civ. Pro., 801.
29 N. Y. Coda Civ. Pro., § 797, subd. 1, as amended by L. 1897, chap. 40 ( applies to all parts of the State). S0 See next paragraph,
31 The computation of the double time runs from the day of the mailing of the paper, not the day of its receipt by the adverse party. "Elliott v. Kennedy, 26 How. Pr. 422; Gates v. Guthrie, 119 N. Y. 420.
32 N. Y. Code Civ. Pro., $ 798. Demand for change of venue, served by mail, doubles the time for plaintiff to serve consent, and for defendant to move after the failure to consent. Binder v. Met. St. Ry. Co., 68 App. Div. 281, 74 N. Y. Supp. 54; Lesser v. Williams, 23 N. Y. St. Rep. 396 (aff’d, 119
A party may not usually double his own time within which to do an act by electing to make a previous service by mail. Contra, as to the time within which to amend his pleading, holding that a party has double time within which to amend if he serves his original pleading by mail. Schlesinger v. Borough Bank. 112 App. Div. 121. Compare Armstrong v. Phillips, 60 Hun, 423, 14 N. Y. Supp. 582; Ward v. Gillies, 19 Civ. Pro. 40.
So if an order, awarding costs to be paid in ten days, or not fixing the time,
V. Y. 639).
41. T'ime of service by mail.]— The person making service by mail effects valid service by making the deposit within the time limited, even though the mail for the day may have gone.
It was formerly considered that mailing meant getting into the mail; it is now understood that deposit in the post office within the time is enough.33a
Hence a post mark as of a later day is not conclusive evidence that the paper was not duly mailed. 34
Delays and miscarriages of the mail do not prejudice the one making the service. 35
42. Requirements to be strictly observed.]— It is not to be forgotten that to take advantage of the mailing as service, irre spective of whether the person addressed received the paper, all the requirements prescribed must be strictly fulfilled. 36
The test in determining whether the service by mail in particular cases suffices is whether or not the papers actually came into the hands of the adverse party's attorney; if defects such as notice to return, or insufficient postage, do not, in fact, prevent the re ceipt of the papers, the service is valid.37
VI. PROOF OF SERVICE.
43. Mode.]– Proof of service may be made by Admission, Return, or Affidavit. The requisites of the two former have been already stated. 38
in consequence of which the statutory period of ten days applies, is served by mail, the other party has 20 days in which to pay. Wellman x. Frost, 38 Hun. 389.
33 Elliott v. Kennedy, 26 How. Pr. 422; Gillespie v. Satterlee, 18 Misc. 606, 42 N. Y. Supp. 463; Vernon v. Gillen Printing Co., 16 Misc. 507.
Contra, Green v. Warren, 14 Hun, 434 (holding that where defendant de posited a frivolous demurrer in the proper office at an hour of the last day, intentionally so late as not to leave by the first mail the following morning, either the service was irregular, or if not, the judgment should not be vacated, because the defendant was not prejudiced. This decision is sustainable on the latter ground). See notes to preceding paragraph, also Gillespie x. Satterlee, 18 Misc. 606, 42 N. Y. Supp. 463; Yates v. Guthrie, 7 N. Y. Supp. 177, 26 St. Rep. 593.
33a Matter of Werner, 51 Misc. 82. 34 Note 33, supra.
35 Anon., 1 Ilill, 217; Radcliff 1. Van Benthuysen, 3 How. Pr. 67; Schwartz V. Livingston, 18 N. Y. Supp. 879, 46 St. Rep. 477; Jacobs v. Hooker, 1 Barb. 71.
36 Anon., 1 Hill, 217; Gaffney v. Bigelow, 2 Abb. N. C. 311; Seifert v. Cav. erly, 63 Hun, 604, 18 N. Y. Supp. 327; Pollerd 1. Wegener, 13 Wisc. 569; Boyland r". Boyland, 18 Ill. 551,
37 Appeal Printing Co. r. Sherman, 99 App. Div. 533, 91 N. Y. Supp. 178. 38 ADMISSIONS, p. 9 of this volume; RETURNS, p. 366 (above).
Service by an officer, made out of his bailiwick or district, 39 or of process of a court of another State, to cannot be proved by: his return; but his affidavit should be taken.
If service was made by a person competent to serve, proof may be made by the affidavit of a competent witness,“ even though he might not have been competent to make the service. 42
44. Allegations in affidavit.- Mode.]— An affidavit of service should state the mode of making it. It is not enough to say that service was duly made. 43
Thus an affidavit of service, made by delivery to a person in the attorney's office, must state some relation between him and the attorney, such as that he was the attorney's clerk4 or the person in charge of the office.
It need not state the clerk's name,45 but must state that he was at the time in the office, 46 and state the name of the attorney.
So an affidavit to leaving the paper in a conspicuous place in the office must state that no one was there. 48
Saying that there was no person in the “ front room,” where the paper is stated to have been left, is not sufficient, for it does not show the absence of the attorney from the office.
If mailed, the manner of inclosing and mailing should be stated, and the address. 50
45. Place.] — To make “proof” of service, the place of delivering the paper, as well as the time, should be stated in the
30 Farmers' Loan & Trust Co. v. Dickson, 9 Abb. Pr. 61, 17 How. Pr. 477. 40 Thurston v. King, 1 Abb. Pr. 126; Morrell v. Kimball, 4 id. 352. 41 Murphy v. Shea, 143 N. Y. 78, 60 St. Rep. 654. 12 See paragraph 2 (above). 43 See authorities collected under the head of RETURNS, p. 366 of this volume. 44 Rathbone v. Blackford, 1 Cai. 343; 8. C., Col. & C. Cas. 260. 45 Tremper v. Wright, 2 Cai. 101.
46 Paddock v. Beebee, 2 Johns. Cas. 117, Col. & C. Cas. 135; Jackson v. Giles, 3 Cai. 88, Col. & C. Cas. 442.
47 Graham v. Powers, 3 N. Y. Supp. 899, 22 St. Rep. 95.
48 Jackson v. Gardner, 2 Cai. 95; 8. C., Col. & C. Cas. 359; Campbell v. Spencer, 1 How. Pr. 97. 49 Dalzell v. Superior Ct., 67 Cal. 453, 7 Pac. Rep. 910.
6 Farley v. Stowell, 57 App. Div. 219, 68 N. Y. Supp. 119 (a statement that the paper was deposited in the post office does not show a service, in the absence of any statement of the address or prepayment of postage).
In Chalmers v. Wright, 5 Robt. 713, omission to specify place of residence of the addressee was held a defect in proof of service of notice of foreclosure by advertisement.
So it was held that to allege generally, in the words of the statute, that the paper was “ properly folded and directed,” was not enough.