Livingston v. New York Elevated R. R. — 33 N.Y. St. Rep. 818

Majority

p. 818

Caroline Livingston, Appl’t, v. The New York Elevated R. R. Co., Resp’t.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

1. Sbevice—Op pafers oh attobhey—Code Civ. Pro., § 797, subd. 3.

To make service of papers regular under subd. 3 of g 797 of the Code, the office must be left by the attorney in such a condition that a person may enter it and leave the paper in a conspicuous place therein. If it is not open, and no service is made by depositing it, as directed in that section, in a sealed and addressed wrapper in his office letter-box, the service must he made on the attorney personally or by leaving it at his residence with a person of suitable age and discretion.

3. Same.

A notice of appeal was taken by the clerk of defendant’s attorneys to the office of plaintiff’s attorney in the afternoon for service, but the office being locked, the notice was slipped through the slot for letters in the door, and no other service was made. This notice was returned. Feld, that such service was irregular and unauthorized.

Appeal from an order permitting service of a notice of appeal from the judgment in this action to be made upon the county clerk, as of the 7th of June, 1890.

iS. B. Livingston, for app’lt; Davies & Papallo, for resp’t.

The power to make the order -from which the appeal has been taken depends upon the fact whether a legal service of the same notice of appeal was made upon the attorney for the plaintiff on the 7th of June, 1890. For if no such service took place on that day, then the court had no power to permit this service of the notice to be made upon the county clerk.

To prove that the notice was legally served upon the plaintiff’s

p. 819

attorney, it was shown that a person employed in the office of the defendant’s attorneys repaired with the notice of appeal to the office of the plaintiff's attorney on the afternoon of the 7th of June, 1890, intending there to make service of the notice. When he reached the office the door was locked, and he was unable to enter it to make service of the notice. But a slot was in the centre of the door, surmounted with a brass plate with the word “ Letters ” upon it, and the notice was slid through this slot into the office, and that is the only service which was made or attempted to be made, upon the attorney for the plaintiff, of the notice of appeal; and whether this was a legal service of the notice depends upon the construction to be placed upon subdivision 3 of § 797 of the Code of Civil Procedure. That subdivision is the same, so far as it affects this service, as the rule previously existing, declaratory of the manner in which legal papers should be served, and under that role it was held that this service could only be made by leaving the paper served in a conspicuous place in the attorney’s office when the office door was unlocked, 18 Wend., 578 , and this decision has been followed in other cases where access has been obtained to the office without the consent of the attorney, after the door had been closed and locked. Campbell v. Spencer, 1 How., 199 ; Livingston v. McIntyre, id., 253 ; Vail v. Lane, 4 Hun, 653 .

These authorities all indicate the proper construction of the language of the subdivision to be that the office must be left by the attorney in such a condition that a person may enter it and leave the paper to be served in a conspicuous place in the office, regularly to make that service. And the language of the subdivision indicates that to have been the intention of the legislature in making the enactment. For it has merely provided that service of a paper may be made when it shall be left in the office of the attorney between six o’clock in the morning and nine o’clock in the evening by leaving it in a conspicuous place in the office. It has also provided for depositing the paper in a sealed wrapper directed to the attorney in his office letter box, where one may have been provided. But no service under this part of the subdivision was intended or attempted. What it was intended to do was to leave the notice of appeal in a conspicuous place in the office of the plaintiff’s attorney. But inasmuch as the office was locked at the time, it was not so made, for no entry could be made into the office to make that service. That it was intended by the subdivision that it could only be made in this manner by entering the office is still more evident from the concluding portion of the subdivision. For that has provided further that if the office is not open so as to admit of leaving the paper therein, then the service is to,, be made, where that shall not be done by means of the letter box, by leaving the paper to be served at the residence of the attorney with a person of suitable age and discretion. This latter clause still more clearly restricts the service where it may be made by leaving the paper in a conspicuous place in the office, to a case where the office itself shall be found open. If it is not open so as to admit of such service, and no service is made

p. 820

by depositing the paper as directed by the section, in a sealed wrapper directed to the attorney, in his office letter box, then it must be made either upon himself personally or at his place of residence with a person of suitable age and discretion.

The service of a notice of appeal not only forms no exception to this requirement, but it has been provided by § 1300 of the Code of Civil Procedure that it may be served in this manner; and such a service of it has not been made.

It is true that it was held in Duval v. Busch, 13 Civ. Pro., 366 ; 13 N. Y. State Rep., 752, by the special term of the city court, that such a service as was made in this instance would be regular. But this decision is opposed to the clear import of the language used in the subdivision, and also to the current of authorities by which it had been previously construed.

The attorney for the plaintiff did- not accept this service, but returned the notice of appeal to the attorneys for the defendant, who in return sent the same to him again, as having been regularly served on the 7th of June, 1890. He at no time acquiesced in, but resisted, the service as irregular and unauthorized. And such appears to have been the character of this service. There was accordingly no authority which permitted the notice of appeal to be afterwards served upon the clerk for the completion of the appeal, and the order should be reversed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concur.