
    Frederick Lyster, Respondent, v. Aylmar T. Pearson, Appellant.
    (New York Common Pleas—General Term,
    February, 1894.)
    A designation of a person to receive service which is not filed in the office of the comity clerk or accompanied by a written consent of the person designated is not valid under section 430 of the Code.
    Where such instrument is simply left by the maker at his office, which is in charge of the person designated, with instructions not to file or use it until instructed so to do, it is also invalid as a power of attorney. A delivery and acceptance of such paper is essential to its validity.
    After the withdrawal of a summons which has been served has been acted upon by the defendant, it cannot be rescinded except by the permission of the court,
    1
    Appeal from an order of the General Term of the City Court, which affirmed an order made at Special Term.
    
      
      Artemas B. Smith, for appellant.
    
      Charles B. Page, for respondent.
   Bookstaver, J.

The order from which the original appeal below was taken was entered upon a motion made by appellant to vacate the judgment entered against him as void for want of jurisdiction of defendant and for its improper entry. The order at Special Term directed that' the “ default be opened,” etc., on condition that the appellant pay plaintiff’s attorneys fifteen dollars and serve his answer in six days; otherwise, that the motion be denied. ' This appeal is taken to review so much of the order as imposes conditions upon the setting aside of the judgment, thereby in effect adjudging that the process was served upon the defendant. The judgment sought to be vacated was entered as by default, and was not based upon the personal service of the summons upon the defendant, but upon an alleged service upon Charles Mortimer, the person claimed by respondent to have been designated by said defendant according to law to receive summonses for him. The instrument alleged to be a designation is contained in the judgment roll and was never filed with the county clerk, nor does it appear to have been accompanied by any written consent of the person designated, executed or filed according to law. It also appears from the appeal book that the appellant has not been outside of the United States.

Respondent, both on the argument and in his brief, practically conceded that the order was appealable to this court, as it affected a substantial right. A motion to vacate the judgment was the proper remedy. The questions raised here could not be raised by an answer or demurrer. Wait’s Pr. 541, § 2; Vilas v. P. & M. R. R., 123 N. Y. 450. It was conceded that there was no personal service on the defendant, but it is claimed that Charles Mortimer was duly designated as the proper person upon whom to serve a summons in his stead. Section 430 of the Code, which regulates such designation, is as follows:

“ A resident of the state of full age may execute, under his hand, and acknowledge in the manner required by law to-entitle a deed to be recorded, a written designation of another resident of the state as a person upon whom, to serve a summons, or any process or other paper for the commencement, of a civil special proceeding in any court or before any officer,, during the absence from the United States of the person making the designation, and may file the same, with the written consent of the person so designated, executed and acknowledged in the same manner, in the office of the clerk of the county where the person making the designation resides. The designation must specify the occupation or other proper addition and the residence of the person making it, and also-of the person designated; and it remains in force during tlffi period specified therein, if any, or, if no period is specified for that purpose, for three years after the filing thereof. * * *

The affidavits in this case show that the original designation, of the defendant was never filed in the office of the county clerk. They also show that the written consent of the person so designated was never executed, acknowledged and filed in the office of the county clerk. We, therefore, think the designation was not valid under the provisions before quoted, and that Mortimer was never properly designated as the person upon whom the summons in this action could be served. It also appears from the affidavits in the case that the defendant had not gone beyond the limits of the United States when theprocéss was served. For these reasons, the court below never' acquired jurisdiction of the appellant, and the judgment was-absolutely void. Read v. French, 28 N. Y. 285, 294, 295. The same conclusion was reached in a precisely similar ease in. the Special Term of the Supreme Court in Lynch v. Pearson, N. Y. L. J., Dec. 22, 1893, p. 762.

But the court below evidently proceeded upon the theory that although the designation might not be valid under section 430 of the Code, yet it was good as a power of attorney, and the service of the summons upon Mortimer was proper for this reason. We know of no law which forbids a party, if he chooses to do so, to waive the right of personal service, and give a power of attorney to' another to receive it in his stead. Where one expects an action to be brought against him he frequently notifies his adversary that the summons may be served upon attorneys designated by him, and such service would doubtless be held good. But where an adversary relies upon such a power he must at all times be ready to show its validity and that the power of attorney was in force at the time of making the service. We think the paper bears internal evidence "of not having been executed as a mere power of attorney, but rather as a designation under section 430 of the Code, as its language and various provisions entirely conform to this view of it. But it is clear from the appeal book that this power of attorney or designation was never delivered to Mortimer for use. The plaintiff says in his affidavit, and it is uncontradicted, u That the said paper was left by me at my said office, of which said Mortimer had charge, but I expressly told the said Mortimer and instructed him that the said designation should not be used by him in any manner, nor should the same be filed, * * * until such time as I shall be traveling outside the United States and should notify and instruct him by letter to take the designation to my regular counsel, Messrs. Smith, Bowman & Close, and have them perfect the designation by filing said paper in the office of the county clerk of the city and county of New York; that said Mortimer told me he would obey my instructions, and I relied upon his so doing, as I then believed him to be trustworthy. I have never changed or modified the instruction to the said Mortimer, that the said Mortimer should deliver the said designation which I executed as aforesaid either to the plaintiff: or his attorneys, and if the said Mortimer has delivered the said designation which I executed as aforesaid either to the plaintiff or his attorneys, he has acted contrary to my directions and wholly without authority from me, and I repudiate his act in so doing.” It is clear from the foregoing that the paper was simply left at defendant’s office with express instructions that he should not use it until notified to do so, and that the instrument was never delivered or intended to be used either by the defendant or Mortimer except in the case specified. A delivery and acceptance of that paper was essential to its validity for any purpose. The appellant had a right to leave the instrument in his office and impose conditions upon its use or taking effect. Pendleton v. Hughes, 65 Barb. 145; Crawford v. West Side Bank, 100 N. Y. 55. Equally fatal to the so-called designation or power of attorney is the positive proof that Mortimer never accepted it.

But even if good as a power of attorney, we think that plaintiff waived his right to take any judgment. After the service of the summons upon Mortimer, the plaintiff, by one of his attorneys, told one of defendant’s attorneys no further attention need be paid to the paper, and indorsed on the copy summons which had been served the words “ Withdrawn, Aug. 15, 1893, Secor & Page, ” and returned the copy of the summons so indorsed to the defendant’s attorney. The respondent’s attorneys afterwards notified appellant’s attorney that this withdrawal was withdrawn by them. There is no doubt that such notice would be good provided the appellant had not acted upon it ,• but he had acted and- relied upon the withdrawal, inasmuch as he made no motion to set aside the alleged service, as he could have done, and as it would have been his duty to have done but for the memorandum. After such a paper has been acted upon it cannot be rescinded except by the permission of the court. Owen v. Cawley, 36 N. Y. 605, 606.

Having arrived at this conclusion, it is unnecessary to determine whether or not the judgment was absolutely void, or voidable only, because it was entered by the clerk and not by the court.

The order appealed from should be reversed, with costs and disbursements, and should be remitted to the court below for proper action.

Bischoff and Pbyob, JJ., concur.

Order reversed, with costs and disbursements, and remitted to the court below for proper action.  