#### Jesse Walker, Respondent, *v.*The Lehigh Valley Railroad Company, Appellant.

Third Department,

July 1, 1914.

Process — appeal — service by mail of notice of appeal from judgment of justice of the peace insufficient — appeal dismissed.

Service of notices of appeal from a judgment of a justice of the peace on the respondent and the justice, by inclosing them in postpaid envelopes properly addressed, and depositing them in the post office at the place of residence of appellant’s attorneys, is not sufficient, and the County Court may, as a matter of right, grant an order dismissing the appeal.

The receipt and retention of the notice by the justice of the peaee did not constitute as to the respondent a waiver of the statutory provision for personal service thereof.

Appeal by the defendant, The Lehigh Valley Railroad Company, from an order of the County Court of Schuyler county, entered in the office of the clerk of said county on the 26th day of November, 1913, granting plaintiff’s motion to dismiss an appeal from a judgment rendered in a Justice’s Court.

P. *F. McAllister,*for the appellant.

*George M. Velie,*for the respondent.

Lyon, J.:

Judgment was rendered herein in a court of a justice of the peace in the county of Schuyler against the appellant July 11, 1913, for one hundred and thirty-seven dollars and fifty cents damages and thirty dollars costs, the appellant appearing upon the trial and cross-examining the respondent’s witnesses but offering no evidence in its defense. July twenty-eighth appellant’s attorneys, who resided in the county of Tompkins, mailed to the justice, who resided in the county of Schuyler, a notice of appeal in which a new trial was demanded, an undertaking, and a check for thirty-two dollars in payment of the costs and *154the fee of the justice for making the return. July twenty-ninth appellant’s attorneys mailed to the respondent, who also resided in the county of Schuyler, a copy of the notice of appeal and of the undertaking. In each case the papers were inclosed in a postpaid sealed envelope. Those mailed to the justice were received at his office July twenty-eighth or twenty-ninth, and on August eighth he filed his return and the notice of appeal and the undertaking approved by him in the office of the clerk of the county of Schuyler. The justice and the respondent each state that no notice of appeal was served personally upon him, and concededly no attempt was made to make service otherwise than by the ordinary course of mail. The respondent alleges that the copy of the notice of appeal and of the undertaking were never left at his residence, and that no notice of appeal was ever served upon him. Appellant’s attorneys state that the envelope containing the copy notice of appeal and of the undertaking was addressed to the respondent at his post office address as stated to them by respondent’s attorney, and that although it bore the business card of appellant’s attorneys it has never been returned to them. They also state that the service was inadvertently made by mail. In October, 1913, the respondent appeared specially in the action and applied at a term of the Schuyler County Court for an order dismissing the attempted appeal. Appellant’s attorneys thereupon applied for an order allowing appellant to perfect its appeal by making personal service upon the respondent or his attorneys of the notice of appeal and undertaking. The County Court granted as matter of right and not as of discretion an order for a dismissal of the appeal, and it is from such order that this appeal has been taken. There is thus presented the single question whether depositing in the post office at the place of residence of appellant’s attorneys, inclosed in postpaid envelopes properly addressed to the respondent and the justice respectively, a notice of appeal, or a copy thereof, constituted in either case proper service thereof, for if it did the County Court ought under the circumstances to have relieved the appellant from the dilemma resulting from its inadvertence, which the County Court in a proper case had in its discretion the right to do *155pursuant to the provisions of section 3049 of the Code of Civil Procedure, providing that “ where the appellant seasonably and in good faith serves the notice of appeal upon either the justice or the respondent but omits through mistake, inadvertence or excusable neglect to serve it upon the other or to do any other act necessary to perfect the appeal, the appellate court upon proof by affidavit of the facts may in its discretion permit the omission to be supplied * * * upon such terms as justice requires. ”

The provisions of the Code of Civil Procedure in force in July, 1913, relating to an appeal from a judgment of a justice of the peace were as follows:*

“An appeal is taken by serving upon the justice by whom the judgment was rendered and upon the respondent, a written notice of appeal.” (§ 3046.)

“ Service of the notice of appeal upon the justice must be made by delivering it to him personally or to his clerk appointed pursuant to law.” (§ 3047.)

“Service of the notice of appeal upon the respondent may be made by delivering it * * * to the respondent personally or * * * by leaving it at his residence with a person of suitable age and discretion.” (§ 3048.)

Thus it appears that proper service of the notice of appeal was not made upon either the justice or respondent, and as the right was given the County Court to relieve the appellant only in a case where the notice of appeal had been legally served upon either the justice or the respondent, the right to permit the omission to serve the notice of appeal to be supplied did not exist, and the decision of the learned county judge was correct and should be affirmed. So far as appears the justice and the respondent were at all times during the twenty days following the entry of the judgment at their respective places of residence in the county of Schuyler, and might have been served personally with the notice of appeal.

Appellant contends, however, that all that was necessary to be done for the purpose of perfecting an appeal, so far as service upon the justice was concerned, was receiving into his *156possession the notice of appeal, the undertaking, the moneys necessary for the payment of the costs, and of the fee of the justice for making the return; and the appellant cites the case of *Mitchell*v. *Watkins*(21 App. Div. 285) as supporting his contention. In that case the respondent, being a non-resident of the county, service of the notice of appeal was made upon the clerk of the appellate court, and a notice of appeal was also mailed to the respondent and to the justice, in each case by registered letter, which was received within the twenty days allowed for taking an appeal, and a receipt therefor given by each addressee, which was returned to appellant’s attorneys; and the court held that the notice of appeal was delivered within the statutory time to the justice of the peace personally, *“*although the delivery was made by the hand of a party who was in the service of the United States government, acting .in behalf of the mail service. ” In the' case of registered mail, as is a matter of common knowledge, the government, for an additional compensation made by the sender, delegates its employee to deliver the mail to the addressee, which in fact in the case cited such employee did personally. In the case at bar, however, the notice of appeal was not, so far as the record discloses, received by the respondent; and as to the justice, the notice of appeal was not delivered to him personally but was left at his office, whether by a mail carrier, or, by a member of the family of the justice, or by some other person, does not appear. The decision of the case at bar is of farther reaching importance than as simply relating to the sufficiency of the service of a notice of appeal in a justice’s court action. To hold that such service complied with the legal requirement that service should be made personally would be to abolish all distinction between service by ordinary mail and service personally, and would be applicable to service of many legal papers other than a notice of appeal. I do not think that. the receipt and retention by the justice of tho notice of appeal constituted as to the respondent a waiver of the statutory requirement for personal service of the notice of appeal upon the justice. While it has been held that the justice might waive the payment of the fee for making the return as being a ■matter wholly personal to himself, he could not waive for the *157respondent a statutory requirement which was a vital requisite to the taking of an appeal.

Such is in effect the holding in *Thomas*v. *Thomas*(18 Hun, 481), in which timely service of the notice of appeal was made, but the defendant neglected to pay the costs and the fee for the return during the time within which the appeal might be taken, and the court held that as the costs belonged to the respondent the justice could not by any act of his waive or cut off the respondent’s right to their payment as a condition to a valid appeal.

The order appealed from should be affirmed.

All concurred; Kellogg, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.

*

 See Laws of 1880, chap. 178, § 3046, as amd. by Laws of 1882, chap. 399; Id. §§ 3047, 3048. Since aind. by Laws of 1913, chap. 445.— [Rep.