
    Duffy v. Morgan.
    On an appeal from a justice’s court, it is not proof of the non-residence of the respondent, to show that she could not be found at her place of residence, and it could not be ascertained where she was staying.
    January 20, 1849.
    Motion to dismiss an appeal from one of the assistant justice’s courts, on the ground that the copy of the affidavit for the appeal was not served on the respondent, within the time limited by section 304 of the code of procedure. The copy was served" on the attorney for the respondent, within that time ; and it was stated in the affidavits of service, that the appellant used great diligence to make the service on the respondent. That he called at the respondent’s place of residence in this city, and could not find her there ; was referred to another house, ivhere it was said she had gone to service, and on calling there, was told they did not know where she was ; and finally that she could not be found within the twenty days.
   The Court

held this evidence to be insufficient to show that the respondent was not a resident of the city of New York, and dismissed the appeal.  