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Estate of Frances H. Emery.

ESTATE OF FRANCES H. EMERY, DECEASED.

SURROGATE'S COURT, Kings COUNTY, FEBRUARY, 1888.

§ 2638.

Executor— When non-resident not granted letters testamentary without gio

ing bond.

It is the policy of our laws that letters testamentary should not issue to

a non-.esident unless upon giving a bond, and although it has been held that letters may issue in such a case without security they should not be so issued, for the reason that creditors and legatees to whom notice of application for letters is not provided, might be seriously affected without an opportunity to object; and this is especially so since, when letters have been granted, they cannot be revoked be

cause of the failure to give security. Estate of Stcrling (9 N. Y. Cio. Pro., 448; S. C., sub nom. Postley v.

Cheyne, 4 Dem. 493), not followed. (Decided February, 1888.)

Application by Clara J. Curtis, an executrix named in the last will and testament of the decedent above named, for letters testamentary.

The petitioner is a niece and adopted daughter of the testator, and a resident of Enfield, in the State of North Carolina. The will of the decedent was admitted to probate and letters testamentary thereon granted to Herbert M. Lloyd, one of the executors named therein, on December 12, 1887.

Herbert M. Lloyd, for petitioner.

Lott, Surr.—It is the policy, I think, of our laws that letters testamentary shall not issue to a non-resident unless upon giving a bond (Code Civ. Pro. & 2638). It is

Duval o. Busch.

claimed here that unless objection is made letters may issue without security. While there is authority for that statement (Estate of Sterling, 9 N. Y. Civ. Pro. 448; S.C., sub nom. Postley v. Cheyne, 4 Dem. 492), I think letters should not be issued in such case, for the reason that creditors and legatees to whom notice of the application for letters is not provided might be seriously affected without an opportunity to object. Especially is this so when it has been decided that the letters, having been granted, they may not be revoked because of the failure of an executor to give security (Estate of Sterling, 9 N. Y. Civ. Pro., 448: S. C., sub nom. Postley v. Cheyne, 4 Dem. 492).

Application denied.

DUVAL v. BUSCH.

CITY COURT OF NEW YORK, SPECIAL TERM, FEBRUARY, 1888.

SS 520, 523, 542, 727, 797.

Pleading— When amended need not be verified-Service of, how made

Subscription of

An amended complaint is not a subsequent pleading within the mean

ing of the Code of Civil Procedure, $ 523, and need not be verified (except in certain cases) although the original complaint and the

answer thereto were verified. A pleading is properly served upon an attorney by dropping it through

a slit or opening for letters in the closed door of such attorney's office into a receptacle attached to the door on the inside for receiv. ing letters during the attorney's absence, notwithstanding it is not inclosed in a wrapper addressed to such attorney. This amounts to placing the paper in a conspicuous place in the attorney's office, such opening not being an office letter-box within the meaning of section 979 of the Code of Civil Procedure, providing for the service of papers by depositing them in the ofiice letter-box of an attorney when his office is closed ; but the letter-box there referred to is a

Duval 0. Busch.

letter-box in a building in which the attorney has his office outside

of the office. In construing the different subdivisions of section 979 of the Code of

Civil Procedure providing for service of papers upon attorneys, the

same must be read and taken together. It seems, that there can be no service of a paper upon an attorney at his

residence if his office is so open as to admit of leaving a paper therein. An amended answer is properly disregarded where it is not subscribed

by the attorney serving it. Where, after the time to amend the complaint in an action had expired,

the plaintiff served an amended complaint and the defendants served an answer which, by reason of being unsubscribed was of no effect, -Held, that the plaintiff could not take judgment upon his amended complaint, although the answer thereto was a nullity ; that the attempted amendment of the complaint was also a nullity, and the

failure to plead thereto was of no consequence. (Decided February 27, 1887.)

Motion by plaintiff for judgment.
The facts appear in the opinion.
William H. Mundy, for plaintiff and motion.
E. A. Monfort, for defendant, opposed.

PITSHKE, J.-Plaintiff moves for final judgment on the defendant's alleged failure to serve an amended answer.

The original pleadings were a verified complaint and a duly verified answer, served September 6, 1887. In February, 1888, plaintiff's attorney (without procuring any order allowing it) transmitted an amended complaint to the defendant's attorney herein, which was not verified. The want of verification of the same constituted no objection, however, as it was not a “subsequent pleading” within the meaning of section 523, Code Civ. Pro. (Hempstead v. Hempstead, 7 How. Pr. 8.)*

* A similar question arose in the case of BROWNE v. BROMELL (Supreme Court, Second Department, Kings County, Special Term, November 29, 1886.

The plaintiff in that case served a verified complaint, and the defendant served a verified answer thereto. Within twenty days after the service of such answer, the plaintiff served an amended complaint, which was not verified. The defendant's attorney forthwith returned it, and the plaintiff moved to confirm its service and compel its accept

Duval . Busch,

It appeared upon this motion that, within six days after receiving such amended complaint, the defendant's attorney placed a copy of defendant's own amended answer (uninclosed in any wrapper), through a slit or opening for letters then in the closed door of the office of plaintiff's attorney, into a receptacle attached to such door on the inside for receiving letters during the attorney's absence, and that the plaintiff's attorney claimed the same was improperly served, and had returned it at once; and plaintiff now applies to the court for judgment thereon as for a default in answering.

The objection to the service is, that the copy, so left as above stated, was not enclosed in a wrapper. The Code Civ. Pro., SS 796, 797, provides, with respect to serving papers in an action, other than process, that where the service is not through the post-office and is not made during the adverse attorney's absence from his office upon a partner or clerk therein, or person in charge thereof, the service may, between six o'clock A. M. and nine o'clock P. M., be made either by leaving the paper in a conspicuous place in such office or by depositing it (enclosed in a sealed wrapper) in such attorney's “office letter box;" and it is only where no office letter box exists and the office is not so open as to admit of leaving such paper therein, that the paper may be served and left at such attorney's residence. In construing the different subdivisions of this section 797, the same must be read and taken together; and it is plain that there can be no service at an attorney's

ance.

Hy. Huffman Broune, plaintiff in person, for the motion.
Montague L. Marks, for defendant, opposed.

PLATT, J. (without opinion), granted the motion, with $10 costs to plaintiff to abide the event.

Duval v. Busch.

residence, if his office (with a letter receiver inside the door) is so open as to admit of leaving a paper therein, and then it must be left in some conspicuous spot within such office; and thence it follows that the deposit in the “office letter box” can only legally occur where such office is not so far open; and, therefore, the letter box intended in section 797 and referred to therein, is his letter box in the building, outside of the attorney's office.*

The copy pleading in question went through the slit into the attorney's office and was left, in a receptacle therein, which certainly was a conspicuous place in the same, for it was there that examination would be surely made for written matter arrived during the attorney's absence, and it is the spot designated within the office for placing such matter (Livingston v. McIntyre, 1 Ilow. Pr. 253).

This view of Code, $ 797, harmonizes all parts of the section, and if the paper cannot be gotten into such office to a conspicuous place therein, it may be deposited, properly enclosed, in the attorney's letter box, at the premises, outside his office, and if there be none such, then the service can be made at the residence of such attorney.

The amended answer herein was, therefore, properly served; but, nevertheless, it was rightfully disregarded and returned by the plaintiff's attorney, inasmuch as it was no pleading in the cause on its face, for not emanating from the defendant's attorney and being unsubscribed by the latter (Code Civ. Pro. $ 520).

This effect does, however, not entitle the plaintiff to judgment herein. His amendment of the complaint was not made as prescribed in section 542, Code Civ. Pro., but after his right to amend “of course” was lost to plaintiff; and the alteration of the original complaint by amendment could only happen by virtue of an order obtained

* See Claflin v. Dubois, ante, p. 234. VOL. XIII.-24.

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