
    Catherine S. Seifert, App’lt, v. Richard Caverly, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    Trial—Notice of—Service by mail—Proof.
    Defendant, on an affidavit showing service of notice of trial by mail on - plaintiff’s attorney, was allowed a dismissal of the complaint by default. On motion to open the default, plaintiff’s attorney and his clerk made affidavit that no such notice of trial had been received, and it appeared by defendant’s proof of service that the wrapper inclosing the notice of trial omitted the street number given by plaintiff’s attorney on the papers served by him in the case. Feld, that such omission was fatally defective to plaintiff’s proof of service, and that the default should be opened without, conditions.
    Appeal by the plaintiff from that part of an order made by the county court of Brie county, entered March 10, "J891, which imposed terms and conditions upon which the plaintiff’s default,, taken at the trial term of the court in January, 1891, was opened.
    
      O. C. Be Witt, for app’lt; Charles M Forsythe, for resp’t.
   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 tne 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 this cause. The true address of the plaintiff’s attorney was 199 Pearl street, Buffalo, N. 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, “ ISTo.-Pearl street, Buffalo, U. Y.” The •offices of the attorneys of the respective parties are not only in the same city, but are located on the same street. Section 797 of the Code of Civ. Pro. permits the service of a notice of trial by depositing it, properly enclosed 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 number, 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 cleric. While it is true that the failure of the mails is not to be ascribed to the parties depositing mail matter when it is post-paid 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 pretented notice of trial claimed to have been sent by the defendant’s attorney did not conform to the Code of Civ. Pro., in respect to the service of the papers. Yates v. Guthrie, 119 N. Y., 420; 29 St. Rep., 566. 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 now 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 has 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 ten dollars costs and disbursements of this appeal.

Dwight, P. J., and Lewis, J., concur.  