Majority
p. 460SUPREME COURT. Oothout agt. Rhinelander. Essex Special Term, March, 1855.
Headnote
The expression, “ at his place of residence,” used in § 411 of the Code, m reference to service of papers by mail, is to be deemed to relate to the post-office, and not to any particular locality in a town or city—(street and number.)Therefore, held, that service of a copy complaint, mailed at Fonda, N. Y., directed to the defendant’s attorneys, “New-York,” was good, although it appeared that the latter attorneys signed their notice of appearance, &c., “ No. 52 Grove-street, in the city of New-York.”
This was a motion to dismiss the complaint, because a copy of it had not been served on the attorneys of the defendant, pursuant to demand. Messrs. Morris & King gave notice of appearance, and demanded that a copy of the complaint should be served upon them at their “ office, No 52 Grove-street, in the city of New-York.” They never received a copy of the' complaint; but by the affidavits of the attorney for the plaintiff, and the deputy post-master at Fonda, it appeared that a copy was mailed in season, directed to “ Morris & King, Esqs., Counsellors, &c.’, New-York.” On that fact appearing, the defendant insisted that the service was insufficient.
F. W. King, for defendant.
R. S. Hale, for plaintiff.
I-think the service sufficient, notwithstanding the address did not state the number of the street, or even
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the street; but was merely directed to the attorneys of the defendant in “ New-York.” The latter required the direction to include the street and number designated by them. This is safer; and sometimes, when directed to a person in a city, has been deemed necessary on service of notice of non-acceptance of bills of exchange, &c., at least in England. (Chit, on Bills, 474; Bayl. on Bills, 280, 283; and see 3 M. & W. 166; Ry. & Mood. 149, 249; Story on Bills, § 298, and note.) And, probably, the package in this case was lost for want of more particularity. Still, I think it is better to have a uniform rule; and I believe the expression, “ at his place of residence,” used in § 411 of the Code, has been deemed to relate to the post-office, and not to any particular locality in a town or city. (See Rowell agt. M'Cormick, 5 How. Pr. R. 337.) That will generally be sufficient. Had the attorney for the plaintiff been informed there were other firms of the same style, or of any other circumstance rendering further designation necessary, a non-compliance with the request to specify the locality might have been evidence of bad faith.
The motion to dismiss must be denied; but the plaintiff must serve another copy, or file the complaint with the clerk.