Brainard v. Hanford — 6 Hill & Den. 368

Majority

p. 368

Brainard and another vs. Hanford and others.

Headnote

Where service of a paper is delayed until the day on which a default for the want of it may be regularly taken, and the attorney, without knowledge of any service, takes the default on that day, it will be upheld as regular, though in fact taken after the paper was served.

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 he took the inquest a few moments afterwards, but without knowing that the affidavit had been served; held, that his proceedings were regular.

An affidavit to prevent an inquest sometimes may and at other times should be served in a different manner from what is required in relation to other papers. Per Bronson, J.

Where the affidavit is served at the circuit, and the plaintiff’s attorney is not present, it may be delivered to the counsel having charge of the cause. Per Bronson, J.

If the affidavit is not delivered at the circuit, it must be served in such a way that it will probably come to the knowledge of the attorney in season to enable him to communicate with his counsel before the inquest is taken. Per Bronson, J.

p. 369

M. T. Reynolds, for the defendants,

moved to set aside an inquest which had been taken in this case by the plaintiffs at the New-Yorlr circuit. Oh the second day of the circuit, the court was to open at half past ten o’clock in the morning. About 20 minutes before that time, the attorneys for the plaintiffs left their office in the city for the purpose of attending the circuit; and, on the opening of the court at the appointed time, they proceeded and took the inquest, not having then heard of an affidavit of merits. On leaving their office they ptit up a written notice in a conspicuous place on' the outside of the door, stating that they had gone to the City Hall. Very soon afterwards, and before the inquest was taken, the agent of the defendants’ attorneys entered the office, the door being unlocked, and finding no person there, served a copy of an affidavit of merits, the original having been properly filed, by leaving the same in a conspicuous place on the table in the office. The defendants’ attorneys resided at Kingston, and sent the affidavit to their agent in the city to be filed and served.

A. K. Hadley, for the plaintiffs,

cited Havens v. Dibble, ( 18 Wend. 655 .)

It may be laid down as a general rule, that where the party waits and serves a paper on the day when his default for the want of it may be regularly taken, and the default is taken on that day, in good faith, and without knowing of the service, we will not inquire or take notice of the fact that the service was at an earlier hour in the day than the taking of the default. The case cited at the bar went upon that principle. I see no reason why a more liberal rule should be adopted, where, as in this case, the motion to set aside the default is made on the sole ground of irregularity.

There is a further reason why this motion should not be granted. Although as to most papers the mode of service was well enough, it was not sufficient under the circumstances of this case. I do not go upon the ground of any want of good faith on the part of the defendants’ attorneys, or their.

p. 370

agent; for there is no reason to believe that any wrong was intended. But an affidavit to prevent an inquest sometimes may and at other times should be served in a different manner from what'is required in relation to other papers. At the circuit, if the plaintiffs’ attorney is not present, it may be delivered to the counsel having the cause in charge. If not delivered at the circuit, it should be served in such a way that it will probably come to the knowledge of the attorney in season to enable him to communicate with the counsel before the inquest is taken. Any other rule might lead to great abuse. In this case, the plaintiffs’ attorneys had left their office for the purpose of attending the court, before the paper was served, and the inquest was taken without any knowledge of an affidavit of merits. The agent made a mistake in leaving the paper in the vacant office. Or, if he left it there, he should have sought the attorneys and informed them of the service.

Motion denied.