Majority
p. 641Loomis ads. -. ALBANY, March, 1839.
Headnote
Where, after the commencement of a suit and service of papers on the law agent of the defendant an attorney of this court, the latter makes a new appointment of another person as agent without apprising the agent first appointed of the second appointment, and the plaintiff subsequently serves papers on the agent first appointed, such service is good, and binding upon the defendant.Motion by defendant to set aside report of referees, on the ground that neither a replication to a plea of payment, or a notice of hearing had been served. The defendant, who is an attorney, defends in person. Pending the suit he appointed' a new law agent in Albany, without notice to the first agent that his services were no longer required. The plaintiff’s attorney not being informed of the change, continued to serve papers on the old agent, who being also ignorant of the change, received and forwarded papers as usual, and among others, received the replication and notice of hearing in question. These papers, though forwarded did not reach the defendant.
By the Court,
Parties are not bound to search the agency book every time they serve a paper. When these proceedings were commenced, Mr. Dean was the defendant’s law agent, and the plaintiff’s attorney was regular in continuing to serve papers upon him, so long as he acted as agent. If the defendant had advised Mr. Dean
p. 642
that he had appointed a new agent and no longer desired his gerv]-ceg> jy[ti Dean would not have received the papers, and would have told the plaintiff’s attorney of the change. The accident which has happened is chargeable to the defendant’s own neglect. But he swears to merits, and must be relieved on payment of costs.
Ordered accordingly.