Daniels v. Rogers

36 How. Pr. 230

• Court: New York County Court, Rensselaer County
• Decided: October 15, 1868
• Status: Published

Opinion

J. Romeyn, County Judge.

I think the motion should be denied; and this because:

1. The notice of appeal was well served whether Daniels was a resident or not resident of the county of Rensselaer; the provisions of the Code respecting it, divested of superfluous verbiage seeming to authorize it. (Code, §§ 353, 354.)

2. If a service of it on his attorney or agent were necessary, it may Well be inferred from his possession and use of it, which were confessedly delivered, directed to him, by Daniels, within the period allowed by law, for the service of it on him or them.

3. The reception from Rogers of the notice by Daniels and its retention by him or his attorney, without dissatisfaction expressed or objection made thereto, by him or his attorney to whom it had by him, been delivered, until the service of the moving papers for this. motion on Rogers’ attorney, and until the expiration of Rogers’ time to appeal, of which, when service was made on Daniels there remained seven days in which service might have been made, by Rogers or his attorney, on Daniels or his attorney or agent, but by which laches of the latter the former was prevented from doing, operated as a waiver of any defect therein, or objection thereto, by or on the part of Daniels. Five or six days has been held to effect a waiver in such cases. (Wright agt. Forbes, 1 How. 240; Knickerbocker agt. Loucks, 3 How. 64; Stillman agt. Whitney, 1 How. 243 ; Van Wyck agt. Hardy, 20 How. 222-4.)

In analogy to service on an attorney which, when that is proper, may be made at any place at home or abroad, or in or out of his office, so service on a party when that is allowed may be made at any place, at home or abroad, or in or out of the county in which the justice resides, or the judgment of the justice was rendered. (1 Dunlap Pr. 320-5.)

The fact of the residence of Daniels in Columbia county, who seemed to have sued as a resident of Rensselaer, was concealed by him from Rogers, who was unadvised of his residence in Columbia county.

4. The residence of Daniels and his attorney being adjacent to that of Rogers and the justice, and the object of the notice being to apprize Daniels of a proceeding affecting a_ suit, in which he was a party, and service of it on him being at least as advantageous to him as service on the attorney or agent, who appeared for him before the justice, he could not have been misled or prejudiced thereby; such service if not within the letter being as much within the reason as if within the letter. (2 Hill, 414; 31 N. Y. R. 291.)

5. If Rogers’ proceedings are void, as they are claimed to be by Daniels, granting the motion, while it will be unneces sary for the protection of Daniels, may be destructive to the redress of Rogers (1 Code Rep. 290.)

Motion denied with $10 costs.