
    Hunt against Onderdonk and others, executors of Taylor.
    ALBANY,
    Feb. 1808.
    where the attorneyofoneof sided the rJr^but^vith in forty miles, agent in the ciservice of a notice m the cause, on such tton^’was^not sufficient,
    HENRY, for the defendants,
    moved to set aside the default, judgment, and all subsequent proceedings in this tause, for irregularity. He read an affidavit, stating, that on the 26th July, 1806, a notice from the attorney of one of the defendants, of his being concerned, was served on the agent of the plaintiff’s attorney, .in Ñervo-Tork, by delivering the same to the partner of the agent, ... nr. , , , ° ’ m his office, who accepted the same,, in. behalf of the agent; and that the defendants’ attorney had no notice of the proceedings, on the part of the plaintiff, until the 25th day of November, when he was informed, that a writ of inquiry of damages had been executed. The writ issued in the cause, was returnable in August term, the declaration was filed the 31st day of August,, and an interlocutory judgment, for want of a plea, entered the 16th Novembers and on the 21st November., the inquisition of damages was filed, and final judgment entered thereon.
    
      Johnson, contra,
    read the affidavit of the plaintiff’s attorney, stating, that he resided at Mount-Pleasant, less than forty miles, to wit, thirty-six miles from the city of New-Tork, where the attorney for the defendants resided, and that the notice, of .the. defendants’ attorney being employed, had never been received by him. He contended, that where the attornies of the respective parties resided within forty miles of each other, a service on am agent in vacation, was not valid. (See the 8th rule of January term, 1799.)
   Per Curiam.

The service of the notice was not- sufficient; but this being a case of executors, and on the merits disclosed, we think that the default, judgment and-subsequent proceedings, ought to be set aside.

Rule granted.  