§ 796. Paper may be served personally.— A notice or other paper in an action, may be served on a party or an attorney, either by delivering it to him personally, or in the manner prescribed in the next section.

Co. Proc., 2408, am'. Kerr v. McGuire, 28 N. Y. 453; Lansing v. McKillup, 7 Cow. 416; Miller r. Miller, 37 How. 1; Drury r. Russell, 27 d. 10: Wetmore v. Parker, 52 N. Y. 450-456; Mason v. Libbey, 1 Abb. N. C. 354.

$797. Other modes of service.

- Where the service

is not personal, it may be made as follows:

1. Upon a party or an attorney, through the postoffice, by depositing the paper, properly inclosed in a post-paid wrapper, in the post-office of the party or the attorney serving it, directed 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; or, where he has not made such a designation, at his place of residence, or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same (1)

2. Upon an attorney, during his absence from his office, by leaving the paper with his partner or clerk therein, or with a person having charge thereof.(2)

3. Upon an attorney, if there is no person in charge of his office, and the service is made between six o'clock in the morning and nine o'clock in the evening, either by leaving it, in a conspicuous place in his office, or by depositing it, inclosed in a sealed wrapper, directed to him, in his office letter-box; or, if the office is not open, so as to admit of leaving the paper therein, and there is no office letter-box, by leaving it at his residence, within the State, with a person of suitable age and discre tion.(8)

4. [Amended, 1879.] Upon a party, by leaving the paper at his residence within the State, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion.

Substitute for Co. Proc., 22 409, 410, 411. Gaffney e. Bigelow, 48 How. 475; Weir v. Slocum, 3 id.398. (1) Van Benthuysen v. Lyle, 8 id. 312, 382; Schenck v. McKie, 41d. 246; Peebles v. Rogers, 5 d. 210; Anon., 25 Wend. 677: 9 Abb. 68; Crittenden r. Adams, 5 How. 300; Radcliffe r. Van Benthuysen, 3 id. 67; Van Horne . Montgomery, 5 d. 233; Oothout e. Rhinelander, 10 1d. 460; Jacobs v. Hooker, 1 Barb. 71; Vassar e. Camp, 14 id. 341; Noble v. Trotter, 4 How. 322: Elliott e. Kennedy, 26 d. 422; Georgia Lumber Co. v. Strong, 3 id. 215; McGown e. Leavenworth, 2 E. D. Smith, 25; Chemung Canal Bank r. Judson, 10 How. 133: Rowell v. McCormick, 5 id. 337. (2) Paddock v. Beebe, 2 Johns. Cas. 117.

(3) Haight v. Moore, 36 N. Y. Supr. 294; Vall v. Lane, 4 Hun, 653; Campbell v. Spencer, 1 How. 199; Livingston v..McIntyre, id. 253.

§ 798. Double time when served through the postoffice. Where it is prescribed in this act, or in the general rules of practice, that a notice must be given, or a paper must be served, within a specified time, before an act is to be done; or that the adverse party has a specified time, after notice or service, within which to do an act; if service is made through the post-office, the time so required or allowed is double the time specified; except that service of notice of trial may be made, through the post-office, not less than sixteen days before the day of trial, including the day of service.

Co. Proc., 412, am'd. Dorlon v. Lewis, 7 How. 132: Cusson v. Whalon, 5 d. 305; Washburn v. Herrick, 4 id. 15; Toomey v. Andrews, 48 id. 332; Evans v. Lichtenstein, 9 Abb. N. S. 141.

$799. When paper to be served on attorney; when service not required. Where a party has appeared, a notice or other paper, required to be served in an action, must be served upon his attorney.(1) If a defendant has not appeared, service of a notice or other paper, in the ordinary proceedings in the action, need not be made upon him, unless he is actually confined in jail, for want of bail (2)

Id., 414 and 417 consolidated. (1) Tripp v. De Bow, 5 How. 114; Flynn v. Balley, 50 Barb. 73; Diefendorf v. House, 9 How. 243; Rice . Ehele, 55 N. Y. 518; Plummer . Belden, 8 Hun, 455. (2) Becker v. Hager, 8 How. 69: Hewitt v. Howell, id. 346; Schundt v. Calm, 3 Afb. L. J. 389; Becker v. Hager, 8 How. 68

§ 800. When service may be made on clerk, for nonresident. Where a party to an action, who has appeared in person, resides without the State, or his residence cannot, with reasonable diligence, be ascertained, and he has not designated an address, within the State, upon the preceding papers, service of a paper upon him may be made, by serving it on the clerk.

Id., 415.

§ 801. Service through branch post-office in NewYork city. In the city of New-York, where a paper is served, or a return is made, through the post-office, the deposit of the package in a branch post-office has the same effect, as a deposit in the general or principal post-office of that city.

New.

§ 802. This article not applicable to service of summons, etc.—This article does not apply to the service of a summons, or other process; or of a paper to bring a party into contempt; or to a case where the mode of service is specially prescribed by law.

Co. Proc., 418, and part of id., § 408.

ARTICLE FOURTH.

DISCOVERY OF BOOKS AND PAPERS.

SEC. 803. Court may direct discovery of books, etc.
804. Rules to prescribe the cases, etc.

805. Petition for discovery, and order thereupon.
806. Order, when and by whom vacated.

807. Proceedings upon the return of the order.
808. Penalty for disobedience.

899. Effect of papers, etc., produced.

§ 803. Court may direct discovery of books, etc.— A court of record, other than a justices' court in a city, has power to compel a party to an action pending therein, to produce and discover, or to give to the other party, an inspection and copy, or permission to take a copy, of a book, document, or other paper, in his pos session or under his control, relating to the merits of the action, or of the defence therein.

2 R. S. 199, 21, consolidated with Co. Proc., 388. Campbell v. Hodge, 4 T. & C. 540; s. c., 2 Hun, 308; Harbeson v. Van Valkenburgh, 5 id. 454; Brett v. Bucknam, 32 Barb. 655; Gould v. McCarthy, 11 N. Y. 575; Walker v. Granite Bank, 44 Barb. 39; Opdyke v. Marble, id. 64; 18 Abb. 266; Davis v. Dunham, 13 How.425; Hoyt v. Am. Exch. Bank, & 1d. 89; 1 Duer, 652; Brevoort v. Warner, 8 How. 321; Dale v. Fellows, 5 id. 451; McKeon v. Lane, 2 Hall, 520; Bowne v. Cribb, 20 Wend. 682; Townsend t. Lawrence, 9 id. 455; Meakings v. Cromwell, 1 Sandf. 698; Powers v. Elmendorf, 4 How. 60; Stalker v. Gaunt, 12 N. Y. Leg. Obs. 132: Stanton . Delaware Mut. Ins. Co., 2 Sandf. 662; Gelston v. Marshall, 6 How. 398: Moore v. McIntosh, 18 Wend. 529; Exchange Bank e. Monteath, 4 How. 250; Morrison v. Sturgis, 26 id. 177; Moore v. Pentz. 2 Sandf. 664: Cent. Nat. Bank v. White, 37 Super. Ct. (5 J. & S.) 297; Holtz v. Schmidt, 34 id. (2 J. & S.) 28; Morgan v. Morgan, 16 Abb. N. 8. 291; De Bary v. Stanly, 5 Daly, 412; Campbell v. Hoge, 2 Hun. 308; Case v. Barita, 9 Bosw. 595.

§ 804. Rules to prescribe the cases, etc. — The general rules of practice must prescribe the cases in which a discovery or inspection may be so compelled, and the proceedings for that purpose, where the same are not prescribed in this act.

Id., 22, am'd. Stalker v. Gaunt, 12 N. Y. Leg. Obs. 132; Bree. voort v. Warner, 8 How. 321; Opdyke v. Marble, 18 Abb. 266; 44 Barb. 64; Morrison v. Sturges, 26 How. 177: McAllister v. Pond, 15 id. 301 Gelston v. Marshall, 6 id. 398.

805. Petition for discovery, and order thereupon. To entitle a party to procure such a discovery or inspection, he must present a petition, (1) praying therefor, and verified by affidavit, to the court, or to a judge,(2) authorized to make an order in the action; upon which an order(3) may be made, directing the party, against whom the discovery or inspection is sought, to allow it, or, in default thereof, to show cause before the court, at a time and place, and upon a notice, therein specified, why the prayer of the petition should not be granted; and, if necessary or proper, that his proceedings be stayed until the hearing of the application, although the stay exceeds twenty days.

2 R. S. 199, 23 and 25. (1) Stalker v. Gaunt, 12 N. Y. Leg. Obs. 132. (2) Brooklyn Life Ins. Co. v. Pierce, 7 Hun, 236; Moore v. McIntosh, 18 Wend. 529; Elder v. Bogardus, 1 How. 117; 1 Edm. 110; Follett v. Weed, 31d. 360. (3) Stow v. Betts, 7 Wend. 536; Crane v. Moore, 1 Sandf. 662.

$806. Order, when and by whom vacated. - An order, made as prescribed in the last section, may be vacated, by the judge who granted it, or by the court, upon satisfactory proof, by affidavit:

1. That it ought not to have been granted, or that it has been complied with ;(1) or,

2. That the party required to make the discovery, or permit the inspection, has not the possession or control of the book, document, or other paper, directed to be produced or inspected.

Id., 24. (1) Harbison v. Von Volkenburgh, 5 Hun, 454; Southart v. Dwight, 2 Sandf. 672; Hoyt v. Amer. Exch. Bk., 8 How. 89; 1 Duer, 652; Ahoyke v. Wolcott, 4 Abb. 41; Bradstreet v. Bailey, id. 233; Hicks v. Charlick, 10 1d. 129.

807. Proceedings upon the return of the order. Upon the return of the order to show cause, the court may make such an order, with respect to the discovery or inspection prayed for, as justice requires. Where either is directed, a referee may be appointed by the order, to direct and superintend it; whose certificate, unless set aside by the court, is presumptive, and, except in proceedings for contempt, conclusive evidence of compliance or non-compliance with the terms of the order. A fixed sum, not exceeding twenty dollars, may be added to the costs of the motion, for the fees of the referee.

Substitute for 2 R. S. 200, 26, and part of Co. Proc., 388.

§ 808. Penalty for disobedience. Where an order. made as prescribed in the last section, directs a discovery or inspection, the party in whose behalf it was made, may, upon proof, by affidavit, that the adverse party has failed to obey it, and upon notice to him, apply to the court, for an order to punish him for the failure. Upon the hearing of the application, the court may, upon the payment of such a sum, for the expenses of the applicant, as the court fixes, and upon compliance with such other terms, as it deems just to impose, permit the party in default to comply with the order for a discovery and inspection; and, for that purpose, it may direct that the application to punish him stand over to a future time. Upon the final hearing of the applica tion to punish the party in default, the court, in a proper case, may direct that his complaint be dismissed, or his answer or reply be stricken out, and that judg ment be rendered accordingly ;(1) or it may make an order, striking out one or more causes of action, defences, counterclaims, or replies, interposed by him; or that he be debarred from maintaining a particular claim or defence, in relation to which the discovery or inspec tion was sought. Where the party has failed to obey an order, allowing an inspection by the adverse party, and requiring him to furnish a copy, or permit a copy to be taken, the court may also direct that the book, document, or other paper, be excluded from being given in evidence; or it may punish the party for a contempt; or both.(2)

Substitute for 2 R. 8. 200, 26, and part of Co. Proc., 1388. See Rice . Ehele, 55 N. Y. 518. (1) Birdsall v. Pixley, 4 Wend. 196; Follett v. Weed, 3 How. 360. (2) Ackroyd v. Ackroyd, 2 Abb. N. S. 381.

§ 809. Effect of papers, etc., produced. - A book, document, or other paper, produced under an order, made as prescribed in this article, has the same effect, when used by the party requiring it, as if it was produced upon notice, according to the practice of the court. 2 B. 8. 200, 27 (2 Edm. 208). See Smith v. McDonald, 1 Abb. N. C. 250.