Smith v. Kerr — 56 N.Y. Sup. Ct. 29

Majority

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JOHN B. SMITH, Respondent, v. ABRAM T. KERR, Appellant.

Headnote

Service of papers sufficiently made by the delivery of a copy — presumption as to the eoyistence of an original a/rising from, the service of a copy.

In this action the defendant’s attorneys prepared an offer of judgment and annexed to the same the affidavit of authority required by the statute and delivered copies, thereof to plaintiff’s attorney, the originals being retained by the defendant’s attorneys.

Held,, that the service of the copy of the offer, and affidavit of authority annexed, was a compliance with the statute, and the delivery of the original papers was. not essential to the service.

That in an action an attorney represents his client, and when a paper in the case: purporting to be a copy is delivered by him, or by his direction, for the purpose, of service upon the adverse party, or his attorney, it is presumed that it is a. copy of an original, provided it purports to be a copy of a paper legitimately made by him in the case.

That the delivery by the defendant’s attorneys to the attorney for the plaintiff of the-copies of the offer and affidavit was, when the non-production of the originals was accounted for, prima facie evidence of the fact that the original offer and affidavit were made.

Where the manner of doing it is not governed by any statute, service of a paper by delivering a copy and showing the defendant, if he desires it, the original, is. the recognized method of making service of it.

Appeal from an order of the Erie Special Term, denying the defendant’s motion for a retaxation of costs.

Ansley d? Dame, for tlie appellant.

James G. Johnson, for tbe respondent.

This action is a consolidation of three actions, in which respectively the defendant’s attorneys prepared offers of judgments, annexed to each of them the affidavit of authority required by the statute (Code of Civil. Pro., § 740), and delivered copies'of such offers and affidavits to the plaintiff’s attorney. The originals were retained by the defendant’s attorneys, and with their office and its contents were destroyed by fire. The offers were not accepted by the plaintiff, and the recovery by him was not more favorable than the offers, and, for that reason, the defendant claimed that he was, and that the plaintiff was not.

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•entitled to costs from tbe time of sncb offers. (Id., § 738.) Tbe clerk disallowed this claim of tbe defendant and taxed tbe plaintiff’s ■costs, and, by tbe order of tbe Special Term, tbe defendant’s motion for retaxation was denied.

Tbe objection on tbe part of tbe plaintiff, taken and urged in support of the denial of costs to tbe defendant subsequently to tbe offers, is, that tbe service of copies of tbe offers and affidavits of .authority annexed, was not a compbance with tbe statute, which provides that tbe defendant may serve upon tbe plaintiff’s attorney “ a written offer,” etc. (id., § 738), and that unless an offer is sub¡scribed by the party, bis attorney must subscribe it and annex ‘thereto bis affidavit, to the effect that be is duly authorized to make' it. (Id., § 740.)

If tbe defendant’s attorneys failed to observe this statutory ^requirement in making and serving tbe offers, the plaintiff’s attorney was at liberty to disregard them. (McFarren v. St. John, 14 Hun, 387 ; Riggs v. Waydell, 17 id., 515 ; affirmed, 78 N. Y., 586 ; Leslie v. Walrath, 45 Hun, 18 .) Tbe question therefore, is, whether tbe ■delivery to tbe plaintiff’s attorney of copies, was a service of the •offers within tbe meaning of the statute. If it requires tbe delivery •of tbe original offer and affidavit, as distinguished from a copy, tbe -defendant failed to make tbe requisite service. In terms, tbe statute -does not direct that to be done, unless such direction is found in tbe provision requiring tbe service of “ a written offer.” Tbe delivery ■of an original paper is not necessarily essential to its service. Tbe old Code (§ 134) provided for tbe service of summons by delivering a copy of it, and so does tbe new Code (§§ 2878, 2910). When ■the manner of doing it is not governed by any statute, tbe service •of process by delivering a copy and showing to tbe defendant, if be -desires it, tbe original, is tbe recognized method of making service of it. (Williams v. Van Valkenburg, 16 How., 152 .)

Tbe attorney is an officer of tbe court, and in the action in which be appears be represents his client. And when a paper in tbe action, purporting to be a copy, is delivered by him or by bis direction for tbe purpose of service upon tbe adverse party or bis attorney, it is presumed that it is a copy of an original provided it purports to be a copy of a paper legitimately made by him in the action. It is usual and within tbe recognized practice to make

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service of papers in actions by delivery of copies, and retaining or filing the originals. (1 Burrill Pr., 351.) There seems nothing in the terms of the statute to talce the service of an offer of judgment ■out of such ordinary rule and practice. If it may be or becomes important to the adverse party for any purpose, that it be done, the attorney making the service may usually be required to file the ■original with the clerk of the court.

It is not essential that the papers have the genuine written signature of the attorney subscribed to it, although the statute requires that it be subscribed by him. His name subscribed in any manner, either written or printed, is sufficient, inasmuch as it is treated by the attorney as subscribed by him, so there is nothing in the inquiry whether judicial notice will be taken of it by the mere inspection of the paper. (Barnard v. Heydrick 49 Barb., 62 ; 2 Abb. [N. S.], 47; S. C., sub nom. Brainerd v. Heydrick, 32 How., 97 ; Mayor v. Eisler, 2 Civ. Pro. R., 125.)

Papers served are given authenticity by the fact that they are served by an attorney or by his directions. The delivery by the defendant’s attorney to the attorney for the plaintiff, of the copies of the offers and affidavits, established, prima facie, the fact that such original offers and affidavits were made, and such delivery constituted the service of them. The plaintiff’s attorney was required to so understand it, and was authorized to treat the papers so delivered for the purpose of the service as the offers of judgment. He could not, therefore, effectually disregard them. But when the defendant came to ask for costs founded upon the fact of offers of judgment, it was necessary for him to furnish proof of service of them. This could properly have been done by the production of the originals with proof of service made by delivery of copies. Their non-production was sufficiently accounted for. It is said by counsel that it does not appear by the papers presented upon this review, what was before the clerk on the taxation by him of the costs. No papers bearing upon that question are properly here, other than those which were submitted to him. It must be assumed that all the papers in the appeal book are properly in it for consideration on this 'review. If anything in it was not legitimately there, correction should have been obtained by motion. No such objection, however, is made. Hpon the facts, as presented,

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the' defendant seems to have been entitled to costs from the time his offers of judgment were served.

The order should be reversed, and retaxation of costs ordered.

Barker, P. J., and Dwight, J., concurred; Haight, J., not sitting.

Order reversed and retaxation of costs ordered, without costs of this appeal to either party.