— The orders to show cause required two days’ service on plaintiff’s attorney. This, upon its face, meant personal service, as service by mail was not specified (18 Dari., 393).
It is, however, claimed that under .section 798 of Code of Civil Procedure it was regular to serve by mail, double the time being given. That section allows such service in cases where, in the Code or in the general rules of practice, a time is specified for doing of an act requiring notice.
In the present case the time is only specified in the order to show cause, and that does not provide for service by mail. In my opinion service by mail was not regular; still the papers were, in fact, received more than two days before the return day and were not returned. The receiving in time has .been held to be important in some cases (Hurl agt. Davis, 13 How., 57, 59; Schenck agt. McKie, 4 How., 246). The plaintiff’s attorney shows a good excuse for not appearing to contest the motions. The orders, or one of them at least, is of that character that the party should have the opportunity to put in his defense to it.
Upon the whole I think the orders of December 15, 1883, *207should he vacated without prejudice to a renewal of the motions. • Costs of this' motion to abide the event.
Ordered accordingly.
Note.—The case cited from 18 Barbour, 393 (BatKbone agt. Acker), was one where a statute provided that if an owner neglected to construct a sidewalk “for ninety days after notice thereof to be served on such owner or his agent,” &c.; and it was held, "where a statute requires service on a person it means personal service unless some other service is specified or indicated! Quaere, what application has that decision to this case. And is not some other than personal service specified or indicated in sections 796, 797 and 798 of the Code of Civil Procedure. The order to show cause is. in effect, but a notice of motion (Pitt agt. Davidson, 37 N. Y., 343). Hurd agt. Davis (18 How., 67), and Schenck agt. McKie (4 How., 345), would seem to be cited only to overrule them. In each of these cases the papers were mailed at the wrong post-office. In the first case Habbis, J., says: "Had the answer in fact reached the attorneys in time it might have been treated as a good personal service from that time;” and the decision in the second case is of like import. In Gross agt. Clark (l Code Civil Pro., 17, decided in general term, first department, January, 1881), the court held that if the manner of service of an order was irregular the irregularity was cured and the service became complete from the time it reached the attorney’s hands, and that service of a copy of an order (except in contempt proceedings) on the attorney without exhibiting the original was regular. The Code having prescribed the manner of service, has the judge in granting orders to show cause power to vary the manner. Can he do more than direct that less than eight days notice shall be sufficient. If the law requires personal service can the order make service by mail sufficient, guare.— [Ed.