
    Seifert v. Caverly.
    
      (Supreme Court, General Term, Fifth Department.
    
    April 13, 1892.)
    Practice—Notice or Trial—Setting Asms Default.
    Code Civil Proc. § 797, provides that a notice of trial may be served by depositing it, properly inclosed in a post-paid wrapper, in the post-office of the party or attorney serving it, directed to the person to be served “at the address, within the state, designated by him for that purpose upon the preceding papers in the action. ” Held, that it was the absolute right of plaintiff to have a default, which had been taken against her, opened on showing that she had not received notice of trial, and that a notice claimed to have been sent by defendant’s attorney was dir rected to “No. —, Pearl street, Buffalo, N. Y., ” whereas the address on the complaint and summons was “199 Pearl street, Buffalo, N. Y. ”
    Appeal from Erie county court.
    Action by Catherine S. Seifert against Bichará Caverly. Plaintiff appeals from an order of the county court which imposed terms and conditions on, which plaintiff’s default taken at the trial term was opened. So much of order as appealed from reversed.
    Argued before Dwight, P. J., and M a comber and Lewis, JJ.
    
      O. C. De Witt, for appellant. Charles E. Forsythe, for respondent.
   Macomber, J.

At a term of the county court of Erie county, held on the 19th day of January, 1891, this cause, it is claimed by the defendant, was duly noticed for trial. The plaintiff’s counsel, happening to be in court on that day, discovered the cause on the day calendar, and objected to its continuance there upon the ground that no notice of trial had been served upon , him. Thereupon the court, without the consent of the plaintiff’s attorney,, set the case down for the following day. On that day, namely, the 20th of January, 1891, the cause was reached. The plaintiff did not appear, and under an affidavit showing the deposit of a proper notice of trial in the post-office, directed to the plaintiff’s attorney, the defendant was allowed to move the case and to obtain an order by default dismissing the complaint, with costs. The motion to open such default was made .upon the ground mainly that the proof of the service of the notice of trial adduced by the defendant’s attorney did not show that it was served upon the plaintiff’s attorney by being mailed to his office, addressed as designated by him upon the preceding papers served by him in bills cause. The true address of the plaintiff’s attorney was 199 Pearl street, Buffalo, Y. Y., and this appears upon the papers signed by him in the case, such as the summons and complaint, etc. The notice of trial was addressed to the plaintiff’s attorney by his correct name, “Yo. —, Pearl street, Buffalo, Y. Y.” The offices of the attorneys of ihe respective parties are not only in the same city, but are located on the same street. Section 797 of the Code of Civil Procedure permits the service of a notice of trial by depositing it, properly inclosed in a post-paid wrapper, in the post-office of the party or attorney serving it, directing it to the person to be served “at the address, within the state, designated by him for that purpose upon the preceding papers in the action.” Undoubtedly, under it, the service of papers by mail may be made in an action after the beginning thereof, though the attorneys live in the same city or town. But to make such service complete it is necessary that the correct address, by a street numbér, be given upon a post-paid wrapper where such address appears upon papers which have been served in the case. In this respect the address of the envelope was fatally defective. The affidavit of the plaintiff’s attorney, that he did not receive the notice of trial, is made positively, and is corroborated by that of his managing clerk. While it is true that the failure of the mails is not to be ascribed to the parties depositing mail matter when it is postpaid and properly addressed, yet, when the question depends upon the regularity of such service, in the absence of proof of the actual receipt of that paper, the party claiming to be regular under this provision of the Code must show affirmatively that the envelope was addressed to the party at the place designated by him for the purpose of serving papers. In this respect the defendant’s proofs, on taking a dismissal of the complaint, were fatally defective. The question, therefore, before the county court was not one of discretion. On the contrary, it was one of absolute right on the part of the plaintiff to have the default, which had been taken against him, opened upon showing the fact that he had not received a notice of trial, and that the pretended notice of trial claimed to have been sent by the defendant’s attorney did not conform to the Code of Civil Procedure in respect to the service of the papers. Yates v. Guthrie, 119 N. Y. 420, 23 N. E. Rep. 741. We think the court erred in imposing any condition upon the plaintiff in granting the motion, and for this reason that part of the order appealed from should be reversed. Counsel for the plaintiff claims that this court should mow order a restitution of the moneys which were paid in pursuance of the terms of the order. While it is true that restitution should be made in case the payment of the money was obtained as a condition of releasing the levy by execution upon the plaintiff’s property, yet we do not think that there were sufficient facts laid before us in these appeal papers to enable us to make such an order at the present time. The defendant lias not been heard ■on that question. The plaintiff should make such application to the county «court in the premises as she may be advised. So much of the order as is appealed from reversed, with $10 costs and disbursements of this appeal. All •concur.  