ney. CHAPTER XI. Notices, and filing and service of papers. SECTION 408, 409. Notices and other papers, how served on party or attorney. 410, 411. When and how served by mail. 412. Double time when served by mail. 413. Eight days' notice of motion, etc., befo.e court or judge, when personally served. 414. Where papers need not be served on defendant. 415. Service of papers where party resides out of the State. 416. Summons and pleadings to be filed within ten days after service. 417. Service, where party appears by attorney. 418. This chapter not to apply to summons or process, or to papers to bring party into contempt. § 408. [369.] Notices and other papers, how served on party or attor Notices shall be in writing; and notices and other papers may be served on the party or attorney, in the manner prescribed in the next three sections, where not otherwise provided by this act. a. Application of. The notices referred to in this section are only those required by the provisions of the Code. It does not apply to an oral notice to produce, given in the presence of the court during trial. Kerr v. McGuire, 28 N. Y. (1 Tiff.), 446. b. Service on attorney.-Where two attorneys are in partnership, doing their business in the name of one, the service of papers may be on either, whether he be in the office or abroad. Lansing v. M'Killup, 7 Cow. 416. And where the original attorney is changed, but there is no regular substitution, notices may still be served on the attorney of record. Grant v. White, 6 Cal. 55. Party or attorney" does not embrace "the clerk." See note to § 410. c. Service on non-resident attorney. See Laws of 1866, chap. 175 d. Service on sheriff-Service of any notice or other paper, required to be served on a sheriff, may be served by leaving the same at the office designated by him (by❘ filing a notice in the county clerk's office), during office hours, or leaving the same with any one therein and belonging to such office; or if the sheriff has not designated any office, then at the office of the county clerk, with such clerk or his deputy, and the same is equivalent to a personal service on the sheriff. 2 R. S. 285, §§ 55, 56, 57. e. Service on Sunday, of a notice or other papers, is void. Field v. Park, 20 Johns. 140. See Fifield v. Wooster, 21 Verm. 215. f. Countermanding service of notice.-A notice of motion cannot be withdrawn or countermanded, without payment of costs of motion. Walkenshaw v. Perzel, 7 Rob. 606; S. C. 32 How. 310; 5 Rob. 648. g. Proof of service.-Whenever it shall be necessary on the trial of an action, or in any judicial proceeding, to prove the service of any notice, an affidavit showing such service to have been made by the person making such affidavit, shall be received as presumptive evidence of such service, upon first proving that such person is dead or insane. Laws of 1858, ch. 244. See Rule 13, and Pulling v. People, 8 Barb. 386. § 409. [370.] Notices and other papers, how served on party or attorney. The service may be personal, or by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: 1. If upon an attorney, it may be made during his absence from his office, by leaving the paper with his clerk therem, or with a person having charge thereof; or when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office, or if it be not open, so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion; 2. If upon a party, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. a. "Attorney" means one who has been admitted as an attorney. Weare v. Slocum, 1 Code R. 105; S. C. 3 How. 397, sub nom. Weir v. Slocum. b. Affidavit of service on a clerk, which does not state that he was in the attorney's office at the time, is insufficient. Jackson v. Giles, 3 Caines R. 88; Paddock v. Beebe, 2 Johns. Cas. 117. It need not specify the name of the clerk. Tremper v. Wright, 2 Caines R. 101. c. Best service.-Where a party makes the best service the nature of the case admits, and follows it up by a regular service, with notice of the facts, as soon as practicable, he will be deemed regular. Falconer v. Ucoppell, 2 Code R. 71. On a motion to set aside a judgment of divorce granted by default, made nearly two years afterwards, held, that the notice of motion was properly served on the plaintiffs' attorneys in the judgment, although they had settled with him, and had themselves dissolved partnership. Miller v. Miller, 37 How. 1. It is an irregular service, where the office is closed, to have it unlocked and leave the paper in a conspicuous place within. Campbell v. Spencer, I How. 199; Livingston v. McIntyre, id. 253. Unless leave to unlock the office and make service is shown. id. See ante, p. 233, a. § 410. [371.] When and how served by mail. Service by mail may be made where the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail. a. Application of.-The provisions of this section and the following one apply to service of papers by mail on the parties to the action, or their attorneys, only, and not to such service upon the clerk. Morris v. Morange, 26 How. 250; Crittenden v. Adams, 1 Code R. N. S. 21; S. C. 5 How. 310; 3 Code R 145. b. Service by mail -Where a paper is served by mail, it must be deposited in the post-office at the residence of the attorney making the service, correctly addressed to the person on whom it is to be served, at his place of residence, and the legal postage paid. Schenck v. McKie, 4 How, 246; Peebles v. Rogers, 5 id. 208; S. C. 3 Code R. 213; Van Benthuysen v. Lyle, 8 How. 312. And properly enclosed in a wrapper or envelope. Anonymous, 25 Wend. 677; Anonymous, 1 Hill, 217; Rathbone v. Clarke, 9 Abb. 66 (n.) When thus deposited, the service is completed, and the party to whom it is addressed incurs the risk of a failure of the mail. Lawler V. Saratoga County Mutual Fire Insurance Co. 2 Code R. 114; Crittenden v. Adams, 5 How. 310; 1 Code R. N. S. 21; 3 Code R. 145; Gibson v. Murdock, 1 id. 103; Radcliff v. Van Benthuysen, 3 How. 67; Van Horne v Montgomery, 5 id. 238; Jacobs v. Hooker, 1 Barb. 71; Oothout v. Rhinelander, 10 How. 460. Otherwise, the service is not complete until the papers are actually received, and the attorney making the service takes the risk of their being received in time. Peebles v. Rogers, 5 How. 208; S. C. 3 Code R 213. A paper deposited in a post-office in a town other than the one in which the attorney resides, is not sufficient service. id.; Schenck v. McKie, 4 How. 246. Service of a paper by mail is good, although deposited in the post-office on the last day for service, after the mail has closed, if otherwise in conformity with the statute and rules of court. Noble v. Trotter, 4 How. 322; S. C. 3 Code R. 35; Elliott v. Kennedy, 26 How. 422. Where an answer is served by mail, if the postage is not paid, plaintiff's attorney may return it and enter judgment as for a default. Van Benthuysen v. Lyle, 8 How. 312. c. Waiver.-Irregularity in the service of a paper is waived, if the paper is retained and acted upon by the party upon whom it was served. Georgia Lumber Co. v. Strong, 3 How. 246. See Wright v. Forbes, 1 id. 240. It should be returned within a reasonable time (which has never been limited to a shorter period than the same day). McGown v. Leavenworth, 2 E. D. Smith, 24; 3 Code R. 151. With an explicit statement of the ground of objection. Chemung Canal Bank v. Judson, 10 How. 133. A mere statement that the service is irregular, and not in compliance with certain sections of the Code, is not sufficient. id. See Rule 13, and note. § 411. [372.] When and how served by mail. In case of service by mail, the paper must be deposited in the postoffice, addressed to the person on whom it is to be served, at his place of residence, and the postage paid, § 412. [373.] (Am'd 1849, 1859.) Double time, when served by mail. When the service is by mail it shall be double the time required in cases of personal service, except service of notice of trial, which may be made sixteen days before the day of trial, including the day of service. Application of this section is to a notice limiting the time in which to appeal. Dorlon v. Lewis, 7 How. 132. And also to an answer served by mail, where the plaintiff | has forty days in which to amend the complaint. See Cusson v. Whalon, 5 How. 305; Washburn v. Herrick, 4 How. 15; S. C. 2 Code R. 2. § 413. [374.] (Am'd 1849.) Eight days' notice of motion, etc., befoer court or judge, when personally served. Notice of a motion or other proceeding before a court or judge, when personally served, shall be given at least eight days before the time appointed therefor. Notice of motion.-Where papers for a motion, on the 28th of October, were served by mail on the 17th, and came to hand on the 19th, and on the 20th the moving party served a notice personally, that such motion would be made on the 28th on the papers already served by mail, held sufficient service. Van Benthuysen v. Stevens, 14 How. 70. § 414. [375.] (Am'd 1849.) Where papers need not be served on defendant. Where a defendant shall not have demurred or answered, service of notice or papers, in the ordinary proceedings in an action. need not be made upon him, unless he be imprisoned for want of bail, but shall be made upon him or his attorney, if notice of appearance in the action has been given. a. Extent of this provision.—It does not embrace provisional remedies. These are not ordinary proceedings, within the sense of the term as used in this section. Though a defendant has appeared, he is not entitled to notice of an application for an order to arrest him. Neither is he entitled to notice of an application for an injunction before he has answered." Becker v. Hager, 8 How. 68. b. Injunction, service of.-The service of an injunction, obtained after an appearance of defendant in the action by attorney, on the attorney instead of the defendant, is irregular, but furnishes no ground for setting aside the injunction. Ib. c. Notice when necessary, and how served. - Where there has been a general appearance, an application for leave to amend the summons must be on notice. Hewitt v. Howell, 8 How. 346. Where a statute requires a notice to be served on a person, it means personal service, unless some other method of service is indicated. Rathbun v. Acker, 18 Barb. 393; McDermott v. Board of Police of Metropolitan Police District, 25 Barb. 636; S. C. 5 Abb. 422. But see People ex rel. Hawes v. Walker, 2 Abb. 421; S. C. 23 Barb. 304. § 415. [376.] (Am'd 1849.) Service of papers where party resides out of State. Where a plaintiff or a defendant who has demurred or answered, or gives notice of appearance, resides out of the State, and has no attorney in the action, the service may be made by mail, if his residence be known; if not known, on the clerk for the party. § 416. [377.] Summons and pleadings to be filed within ten days after service. The summons, and the several pleadings in an action, shall be filed with the clerk within ten days after the service thereof, respectively; or the adverse party, on proof of the omission, shall be entitled, without notice, to an order from a judge that the same be filed within a time to be specified. in the order, or be deemed abandoned. Pleading, how filed after expiration of time limited.-The court will permit a plaintiff to file a reply after the time limited in an order to file it, where the omission is explained, e. g., if a copy is inadvertently filed instead of the original. Short v. May, 2 Sandf. 639. Where a party files a pleading in obedience to an order under this section, he is not bound to notify the party obtaining the order, that the pleading is filed. Duoy v. Hoyt, 1 Code R. N. S. 286. § 417. [378.] Service, where party appears by attorney. Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney, instead of the party. a. Offer to allow judgment to be corrected. An offer to allow judgment to be corrected under the provisions of § 371 of the Code, must be served upon the appellant and the justice. But where an attorney has appeared for the appellant, the offer must be served upon the attorney in compliance with § 417. Purvis v. Gray, 39 How. 1. b. Notice of appeal should be served on the attorney of record in the court below, not on the party. Flynn v. Bailey, 50 Barb. 73; Tripp v. De Bow, 5 How. 114; S. C. 3 Code R. 163. Where the attorney for the plaintiff in error removed from the State, and notice had been given to the party to appoint another attorney pursuant to the statute (2 R. S. 287, § 67, held, nevertheless, that a motion to quash the writ of error could not be made without notice thereof to the plaintiff in error. Jewell v. Schouten, 1 N. Y. (1 Comst.), 241. c. Application of section.- This sec tion, like the 414th, applies to the ordinary proceedings in the action. See note to § 414. The service of papers in a cause upon an attorney, after he has become a non-resident of the State, is irregular. Diefendorf v. House, 9 How. 243. But see Laws of 1862, ch. 43. d. Attachment, motion papers.The service of motion papers by defendant's attorney, to set aside an attachment and an order for publication on the plaintiff's attorney, some four years after the entry of judgment in the action, held, sufficient. Drury v. Russell, 27 How. 130. See note to section 285. § 418. [379.] This chapter not to apply to summons or process, or to papers to bring party into contempt. The provisions of this chaper shall not apply to the service of a summons, or other process, or of any paper to bring a party into contempt. a. Contempt, proceedings for and service of papers.-In a proceeding under § 285, to enforce a judgment in a civil action, that the defendant appear before a referee, named, and convey certain premises to the plaintiff, by punishing the defendant as for a contempt, it is sufficient under this section (418) to make a personal service on the defendant, of the underwriting of the referee, and a copy of the judgment and summons. In such case, an order to show cause why defendant should not be punished, need not be served on defendant; it is sufficient if served on his attorney. Pitt v. Davison, 3 Abb. N. S. 398; S. C. 34 How. 355; 37 N. Y. (10 Tiff.), 235; 4 Trans. App. 266. A client cannot be punished as for a contempt, for an act done by his attorney without his consent or knowledge. Satterlee v. De Comeau, 7 Rob. 666. § 424. Judgment on bond and warrant of attorney, executed before July 1, 1848. Upon any bond and warrant of attorney executed and delivered before the first day of July, eighteen hundred and forty-eight, judgment may be entered in the manner provided by sections 382, 383, and 384, upou the plaintiff's filing such bond and warrant of attorney, and a statement signed and veritied by himself, in the form prescribed by section 382. See Allen v. Smillie, 12 How. 156; S. C. 1 Abb. 354. § 425. Time for publication of notices, how computed. The time for publication of legal notices shall be computed so as to exclude the first day of publication and include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publication. a. Notices, publication of, time, how computed.-The computation of time is made by excluding the first day of publication and including that which completes the full period required for publication. Brod v. Heymann, 3 Abb. N. S. 396. And a judgment entered before the full lapse of such period and twenty days additional (for answering) is irregular. Ib. b. Proof of the publication of any notice or advertisement, which by law are required to be published in any newspaper of this State, may be made by the affidavit of the printer, or foreman of the printer of such newspaper. Laws of 1835, ch. 159. See ante, §§ 138, 407; Laws of 1859, ch. 252; Laws of 1869, ch. 831. § 426. (Am'd 1869.) Laws of other States and governments, how proved. Printed copies of statutes, code or other written laws, and of the proclamations, edicts, decrees and ordinances, by the executive power of any State or territory or foreign government, when printed in books or publications purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law, in the courts and judicial tribunals of such State, territory or government, shall be admitted by the courts and officers of this State, on all occasions, as presumptive evidence of such laws, proclamations, edicts, decrees and ordinances. The unwritten or common law of any other State or territory or foreign government, may be proved as facts by parol evidence, and the books of reports of cases adjudged in these courts, may also be admitted as presumptive evidence of such law. a. Records of board of regents.-| Copies of and extracts from any and all records, books, papers, documents, files and manuscripts in the possession or custody of the regents of the university as such, or as trustees of the State library, or otherwise in their official capacity, and duly authenticated under the hand of the chancellor or secretary, and under the common seal of the said regents as a true copy of such original, may be used and read in evidence in all courts in this State with the same force and effect as the original. Laws of 1870, ch. 60. See Laws of 1835, p. 326; Laws of 1846, pp. 204, 303; Laws of 1858, pp. 498, 500; 6 Wend. 483; 2 id. 411; Dall. 412; 9 Cranch, 122 (n.); 1 Stark Ev. (ed. 1842), 232, note 2; 1 Phill. Ev. (Cow. & H. ed. 1843), 383; 3 id. 1056, note 708. b. Charter of the city of New York may be read as evidence from a volume printed by authority of the common council, whether it was printed prior or subsequent to the act of April 17, 1832. It may be so read on a trial involving the title to lands, the statutes making no distinction as to the purposes for which it may be read; but such proof is only prima facie. Howell v. Ruggles, 5 N. Y. (1 Seld.), 444. See Laws of 1832, page 251. c. Foreign laws are to be treated as facts. They must be alleged and proved like other facts, of which the court does not take |