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affidavit.51 Where personal service is alleged, stating that it was in a specified town or village is enough, if there is no more spe cific requirement in the statute or rule, but the better practice is to state precise location, as by street and number, as the practice re quires in case of summons.53
46. Indirect proof of service.]— Where the affidavit of the person making the service cannot be had, as, for instance, where, during delay before making it, he has died, the court will act on secondary evidence presented by affidavit, if it be such as if presented on a trial at common law would be satisfactory. But an affidavit of a person who saw the service may be received without accounting for the absence of proof by the one who actually made the service.65
Proof that a notice, shown to have actually come to the hands of the person served, was sent by mail in time to have reached him seasonably by the usual course of the mail, is not enough to show that it did reach him seasonably.
51 The reason is that the place is one of the circumstances necessary to give certainty to the evidence. If the service is proved by return, the presumption of performance of official duty will supply the omission, unless jurisdiction of a court or officer of limited jurisdiction depends on it. See p. 371 of this volume.
52 See p. 372 of this volume, note 60. 53 N. Y. Gen. Rule No. 18.
54 As to deceased attorney's register and official papers, see Livingston ; Arnoux, 56 N. Y. 507, aff'g'15 Abb. Pr. (N. S.) 158; Leland v. Cameron, 31 N. Y. 115; and as to proof by combining the testimony of two witnesses, Mayor r. Second Ave. R. R. Co., 102 N. Y. 572, and cases there cited.
Where the clerk who made the service had left the State, a memorandum by him, and an affidavit of information derived from him, made by the attor ney, were received as proof. Jackson v. Howd, 3 Cai. 131; s. c., Col. & C. Cas. 474.
Where the affidavits were conflicting, an entry in the attorney's register. sworn to have been made on the day of service, was held conclusive. Savage v. Carpenter, 2 How. Pr. 169.
Afidavit of service of a notice is competent secondary evidence“ on the trial of an action." N. Y. Code Civ. Pro., & 927. Not competent primary evidence on a trial. People ex rel. Vogler v. Walsh, 87 N. Y. 481.
55 Murphy v. Shea, 143 N. Y. 78, 60 St. Rep. '654 (service of summons upon infant established by allegation of service in father's petition for appointment of a guardian ad litem).
56 Melvin 1. Purdy, 17 N. J. L. (2 Harr.) 162, denying motion founded on such service of notice to sheriff of motion to amerce him for not executing writ.
As to the presumptions of receipt of a paper sent by mail. in absence of any statute or rule of court, see McCoy v. Mayor, 46 Hun, 268, 11 N. Y. St. Rep. 504; People r. Albany Med. Coll., 26 Hun, 348: Stafford v. Cole. 1 Johns. Cas. 413; s. c., Col. & c. Cas. 110; Clark v. McFarland, 10 Wend. 634
Where service of a paper on an attorney was not properly made, cireum
47. Disproving service.] - Admissions,57 affidavits, and returns of service may be contradicted, but clear proof is usually required in contradiction, it being considered that the act, alleged to have been done and supported by proof in the course of professional duty, is not to be lightly impeached.co
VII. DEFECTIVE SERVICE AND REMEDIES THEREFOR.
48. Approximate service.]— If timely service in either of these modes is impracticable, the best mode that seems practicable should be pursued and followed by formal service the next day, coupled with notice of the circumstances,61 and it will then be for the court to say whether the case is one in which the prescribed mode of service is absolutely indispensable, and if not, whether the circumstances of delay till the last moment preclude discretionary relief.
49. Defective service.]— Retaining a paper irregularly served, and acting on it as if regular, waives the objection, even though the objection, if properly taken, would entirely vitiate the service. Where the paper served is effective and properly served for some purposes, the rule as to waiver does not apply. 63
If notice is served on the wrong person, so that it is no service,
stances uncontradicted, inducing a belief that it was received, were treated as sufficient proof. Anon., 2 Cai. 384.
In Clark 1. McFarland, 10 Wend. 634, proof that the packet containing a plea was taken from the post office by the attorney, before default, but immediately returned to the post office on observing that it contained law papers (there being no express sanction for service by mail), was held sufficient to render a subsequent judgment by default, for want of service of the plea, irregular.
57 Rogers v. Schmersahl, 2 Sup. Ct. (T. & C.) 668 (date of admission shown to be premature).
58 Mace v. Mace, 24 App. Div. 291, 48 N. Y. Supp. 831; Annis v. Upton, 66 Barb. 370, requiring positive evidence or the most convincing circumstances in disproof; s. P., Oliver 0. Town, 28 Wisc. 328.
509 Campbell 0. Self, 2 How. Pr. 35.
60 To meet a positive denial that a paper was received, the affidavit in reply must state time and manner of service, so that an indictment for perjury can be maintained, if not true. Van Wyck v. Reid, 10 How. Pr. 366; Van Rensselaer 0. Chadwick, 7 How. Pr. 297.
61 As, for instance, in Falconer v. Ucoppell, 2 Code Rep. 71; Lord v. Vandenburgh, 6 Duer, 703, 15 How. Pr. 363.
2 Georgia Lumber Co. v. Strong, 3 How. Pr. 246; Germania Life Ins. Co. v. Powell. 29 Misc, 424, 61 N. Y. Supp. 942: Rogers v. Rockwood. 13 N. Y. Supp. 939, 36 St. Rep. 919, 20 Civ. Pro. 212; Meislahn v. Hanken, 18 N. Y. Supp. 361.
63 Wilson . Doran, 110 N. Y. 101 (answer containing defense of tender and other defenses; held, that retaining the answer did not waive the defect of failure to serve notice of deposit of money into court to keep tender good).
return of the paper is not necessary, even though he was the party and might have been affected by service on his attorney, and omission to return does not estop the party from objecting that the statute was not complied with, unless there are other circumstances of equitable estoppel or waiver, or appealing to the discretion of the court.
50. Returning. ]— A party or attorney declining to receive service of a paper presented to him, should return it promptly to the one by whom it is served.
If there is no attorney's name on the papers it is to be returned to the party. If the party is a municipal corporation, having a counsel under statute, it should be returned to him.
In the absence of any circumstances indicating waiver, return during the same day is sufficient; so, or return within twenty four hours; 67 longer delay may be fatal. Taking an advantage by the service - such as receiving costs with an answer allowed to be served on payment of costs, and returning the answer without the costs — deprives the return of the paper of its intended effect.68
51. Specifying objections.]— If the service is in season and the return is on the ground of irregularity, the objections must be distinctly specified, and the only safe practice is to specify them
64 Purvis v. Gray, 39 How. Pr. 1 (offer to allow a judgment to be corrected served (by plaintiff) on the appellant personally, instead of on his attorner. The reason is that service on the wrong person is void). Service on the right person in a wrong manner is usually only irregular. In either case the defect may be waived.
65 Taylor r. Mayor, etc., of N. Y., 11 Abb. Pr. 255.
66 McGown r. Leavenworth, 2 E. D. Smith, 24 (answer returned within two hours after its receipt by the plaintiff's attorney. Within twenty days an amended answer was served, which was also refused. Defendant havin: placed the cause on the calendar, plaintiff's motion to strike out was granted. Order affirmed). Wright v. Fobes, 1 How. Pr. 240 (a month's delay to Jong); Stillman v. Whitney, 1 How. Pr. 243 (so, of a delay of one week); Lange v. Hirsh, 38 App. Div. 176, 56 N. Y. Supp. 649 (so, of a delay of three days).
67 See Fitzgerald v. Dakin, 101 App. Div. 261, 91 N. Y. Supp. 1003.
88 Hoxie v. Scott, Clarke (N. Y.), 457; Lange v. Hirsh, 38 App. Div. 176, 56 N. Y. Supp. 849.
69 Chemung Canal Bank v. Judson, 10 How. Pr. 133, holding that a mere objection of irregularity and that the service was not in compliance with a specified section of the Code, is not enough. Markes v. Epstein, 13-N. I: Civ. Pro. 293 (return of a copy served, without specifying objection, does not raise the objection that the party was entitled to have the original delivered instead of a copy).
in writing, for which purpose a brief indorsement upon the paper is sufficient. 70
So if a service is too late, return the paper specifying the objection, as to silently disregard it will usually waive the objection of tardy service.71
52. Re-serving returned paper.]— As a waiver of service, or an assent to the justice of the objection, has, under some circumstances, been inferred from silence on receiving a paper thus returned, the safer practice for the attorney to whom a paper is returned is immediately to re-serve the paper, with notice that the service first made is insisted on; but so doing does not make it necessary to return the paper again.
Nor does the acceptance of the paper on such re-service by the attorney's clerk, in ignorance of the fact that his principal had rejected it because the original came too late, waive the defect.13
53. Motion to determine disputed service.]- If any substantial right of a party is affected by the question as to the regularity of service, or may be prejudiced by consequent proceedings, a motion may be made on the one hand to compel the party who has refused to receive the paper, to accept service or declare the service already made good,14 or, on the other hand, to strike out or set aside the paper claimed to have been duly served, or set aside the service.?
54. Relief against illegal service.]— Service effected in a civil action by wrongfully entering the house of the person to be served
as where a daughter having the key of her mother's house let herself in with it without permission, in order to effect service
70 In Jacobs v. Marshall, 6 Duer, 689, an oral statement to the messenger making the service was held sufficient, on the ground that he who is employed to make the service is competent to receive the reasons for its rejection. Cited approvingly in 158 N. Y. 146. ·
71 See cases cited in notes to two preceding paragraphs. Receiving and retaining the printed case on appeal, after returning the notice of appeal, is not a waiver of the objection. Marsh v. Pierce, 110 N. Y. 639.
72 Jacobs v. Marshall, 6 Duer, 689.
of an order to submit to examination in an action pending between them — the court will set aside on motion, with costs. So if service is effected by fraud, or in violation of privilege. But the application must be promptly made."
FORMS. 219. Affidavit of personal service on 224. - of seeing service made by a a party or attorney of a pa per
person who has since disap other than process.
peared. 220. Another form — service on many 225. - of service such as to make persons.
disobedience a contempt. 221. Affidavit of service through the 226. Order extending time for serpost-office.
vice. 222. - on attorney.
227. Notice indorsed on paper re223. - on sheriff or coroner.
turned. 228. Notice with paper re-served
FORM No. 219.
Affidavit of personal service on a party or attorney of a paper other than
summons or other original process.78 [Title of court and cause.] [Venue.]
M. N., being duly sworn, says that [he is a clerk in the office of
the plaintiff's attorney herein; that']* on the day of
19 , at [No. 100 Broadway, in the city of Buffalo, in the county of Erie and State of New York, or, if in a village or town, at the village of, etc.] deponent served the [designating paper], hereto annexed [or, an order of which a
76 Mason v. Libbey, 1 Abb. N. C. 354, 51 How. Pr. 436.
78 See paragraphs 10–27, pp. 382– 394 (above), as to service upon a party, attorney or counsel. agraphs 1-9, pp. 379–382 (above), as to mode of service; and see paragraphs 43-47, pp. 400-403 (above), as to proof of service.
The form for service of summons is given with SUMMONS.
When the above Form is used for any other process, such as order to show cause on original petition to start a special proceeding, or against one not a party to an action in which
he is required to show cause, it is well to add at the end, in analogy to the requirement applicable to summons (N. Y. Gen. Rule No. 18): “De ponent further swears that he is over twenty-one years of age (or, if less, state age, show it to be not less than 18], and knew the person so served to be the person mentioned and described in said [order] as required thereby to show cause."
79 An omission of this bracketed clause does not necessarily vitiate. See paragraph 2, p. 379 (above).