¶1The defendant Hojer and the plaintiff’s attorney contradict each other as to the service of the notice of appeal on the attorney; but they both agree in the fact that the notice was not left with the attorney, but was finally retained by the defendant. If the defendant’s statement is right, he should not have taken back the notice from the plaintiff’s attorney. In view of his receiving it back without objection, and without insisting on the service, the delivery, if any was made, cannot be regarded as a good service;
¶2It is impossible for us to decide between these affidavits as to whether the plaintiff’s attorney had or not the possession of the *218notice at all. If it was in his possession, the defendant should have left it there, and not have received it back, which he did, and for the purpose—as would appear from the attorney’s statement—of “ hunting up ” the plaintiff in the Third avenue.
¶3I am inclined to think, also, the proof of the plaintiff’s non-residence was insufficient. (See Duffy v. Morgan, 2 Sand. Sup. Ct. R. 631.) The defendant states only his knowledge and belief, and Mr. Ely, the plaintiff’s attorney, swears that he told Hojer that the plaintiff had stated one of his addresses to be at some- number in the Third avenue. Had the notice, however, been properly served on the attorney, it might be deemed prima facie sufficient.
¶4As there does not appear to have been a sufficient service on either attorney or party, I think the appeal must be dismissed.
¶5Appeal dismissed.