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10 How. Pr. 460

Oothout v. Rhinelander

New York Supreme Court

Decided March 15, 1855

New York Supreme Court · decided 1855-03-15

This was a motion to dismiss the complaint, because a copy of it had not been served on the attorneys of the defendant, pursuant to demand. Messrs.

Cited by 1 later decisions — most recently April 1881

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1855-03-15

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Hand, Justice.

¶1I-think the service sufficient, notwithstanding the address did not state the number of the street, or even *461the street; but was merely directed to the attorneys of the defendant in “ New-York.” The latter required the direction to include the street and number designated by them. This is safer; and sometimes, when directed to a person in a city, has been deemed necessary on service of notice of non-acceptance of bills of exchange, &c., at least in England. (Chit, on Bills, 474; Bayl. on Bills, 280, 283; and see 3 M. & W. 166; Ry. & Mood. 149, 249; Story on Bills, § 298, and note.) And, probably, the package in this case was lost for want of more particularity. Still, I think it is better to have a uniform rule; and I believe the expression, “ at his place of residence,” used in § 411 of the Code, has been deemed to relate to the post-office, and not to any particular locality in a town or city. (See Rowell agt. M'Cormick, 5 How. Pr. R. 337.) That will generally be sufficient. Had the attorney for the plaintiff been informed there were other firms of the same style, or of any other circumstance rendering further designation necessary, a non-compliance with the request to specify the locality might have been evidence of bad faith.

¶2The motion to dismiss must be denied; but the plaintiff must serve another copy, or file the complaint with the clerk.

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