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Gaffney v. Bigelow

2 Abb. N. Cas. 311 Court N. Y. Supreme Court, Fourth Department; General Term, English

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p. 311
GAFFNEY v. BIGELOW.
N. Y. Supreme Court, Fourth Department; General Term,
1876.

Headnote

Service by mail.—Indorsement to “return if not called for, ” &o.
Service by mail, in an envelope indorsed with the direction often used on letters, to “return if not called for,” &c., is not vitiated thereby, unless it appears that by reason of the return, in obedience to the indorsement, the person to be served failed to receive the paper.[1]
Appeal from an order.
Charles Gaffney and others sued Joshua Bigelow, for goods sold, and served a complaint. On the last day for serving copy answer, defendant’s attorneys mailed a copy of notice of retainer, appearance and demurrer, by enclosing them in an envelope having upon it this indorsment: “If not called for in five days return to”
p. 312
[here followed attorneys’ names and address]; and deposited them in the post office, postage paid, at the place of their residence, and addressed to plaintiff’s attorney in another town. Plaintiff’s attorney received the papers, but returned them with a notice that he declined to accept them, on the ground that they were served qualifiedly and conditionally, and only on the condition that he should call for them within five days, &c., and that the service was irregular, insufficient, and not made in time.
At special term the court held that “the letter not being in fact received until after the expiration of the time to answer, the defendant must rely upon his service by mail.....Courts have always held to a strict performance in a service of this kind ( 1 Hill, 317 ). The mailing, for instance, must be at the place where the attorney resides (1 Barb. <Jh. 649 ; 13 How. 57 ; 4 Id. 346), although no harm comes from such mailing. If not strictly regular the mailing party takes the risk of it being received in' time.
“ If an indorsement to return if not called for within five days could be made, the same principle would allow one to be made to return in one day. ... The mailing should be absolute' and unconditional. Ho control over it should be observed in any event. The rule that the same is complete at the deposit is one that in many cases works hardships to the opposite party. The party getting the benefit of it should therefore strictly comply.”
From the order refusing to vacate the judgment which plaintiff had entered for want of an answer, defendants appealed.
Ruger & Jenney, for appellants.
I. A paper is reg- ■ ularly served by counsel if duly mailed on the last day for service, though not received till the twenty days have expired (Brown v. Briggs, 1 How. Pr. 152 ; Schenck
p. 313
v. McKie, 4 Id. 246 ). The deposit in the post office is the service (Elliott v. Kennedy, 26 How. Pr. 422 ). The service in question was made in time.
II. The service of the demurrer was properly made, and was complete. (1.) There was no conditional mailing. (2.) There was no qualification or condition attached to the transmission or delivery of the mail. (3.) The demurrer was deposited within the twenty days, and was received by plaintiffs’ attorney in the usual course, by mail.
S. J. Barrows, for respondents.
I. The service of papers by mail is only allowed “where the person mating the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail” (Code, § 410).
II. In case of service by'mail, the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid (Code, § 411). And it must be deposited in the post office at the place of residence of the person mating the service (Schenck v. McKie, 4 How. Pr. 246 -248; Corning v. Gillman, 1 Barb. Ch. 649 ; Peebles v. Rogers, 5 How. Pr. 208 ; VanBenthuysen v. Lyle, 8 Id. 312 ). When thus deposited, the service is complete, and the party to whom it is addressed incurs the risk of a failure of the mail (Note f, Voorhies’ Code, § 410 ; Lawler n. Saratoga Co. M. Fire Ins. Co., 2 Code, 114 ; Crittenden v. Adams, 5 How. Pr. 310 ; Radcliff v. Van Benthuysen, 3 Id. 67; Van Horne v. Montgomery, 5 Id. 238 ; Jacobs v. Hooker, 1 Barb. 71 ; Othout v. Rhinelander, 10 How. Pr. 460 ). Otherwise the service is not complete until the papers are actually received, and the attorney making the service takes the risk of their being received in time (Peebles v. Rogers, 5 How. Pr. 208 ). In this case the moving papers do not show that the notice of retainer and copy of
p. 314
demurrer were deposited in the post office at the place where the attorneys, or either of them, for the defendant resided, or that they were addressed to the plaintiff’s attorney at his place of residence. Nor do they show that there was a regular communication by mail between the place where they were deposited in the post office and where they were addressed—nor that there was in fact any communication by mail between those two places; and for this reason alone, the proper objection having been taken in time, the motion should have been denied, as it was (Code, %% 408-410; Schenck v. McKie, 4 How. Pr. 246 -248 ; 4 Wait's Practice, 622).
III. The statute allowing the service of papers by mail was created for the express purpose of conferring a benefit or favor upon the persons who might thereafter choose to make service in that way, and its provisions must be strictly complied with or the service will not be good; and when the statute is complied with, and all its provisions observed, the person on whom the service is made takes the risk of the mail. But if it is not complied with, then the person making the service takes the risk that the paper will be received in time, or that the person on whom it was made will accept the service attempted to be made.
IV. The service must be absolute. It can not be qualified or conditional, or such a service as was made in this case. If it can, and the person making the service has the right to direct and require the postmaster to withhold the delivery and return the paper to him, if the person on whom it is attempted to be served does not call for it in five days, then it will be equally proper for him to require and direct the postmaster to withhold the delivery and return it, if it is not called for in one day or one hour.
V. The service was irregular and insufficient. The notice of retainer and copy of demurrer were not re
p. 315
ceived by the plaintiff’s attorney until the 2nd day of February, 1875, nor until after the time when judgment became due by default, and he had the undoubted right to (at once or on the same day) return the same and enter judgment, as was done in this case (Farrand v. Herberson, 3 Duer, 655 ; Philips v. Prescott, 9 How. Pr. 430 ; 3 Wait's Practice, 645).
VI. The defendant has not been and cannot be prejudiced or injured by the judgment or execution. And more than this, the moving papers do not contain any affidavit of merits, or show that one has been filed or served. This, we submit, is necessary (Popham v. Baker, 1 How. 166 ; Rule 29). Nor is the motion made upon the judgment roll in any way.

were of opinion that the indorsement on the envelope to return in five days did not prejudice the party to whom it was addressed unless it was made to appear that, by reason of the return in obedience to the indorsement, the party failed to receive it. It appearing in this case that the papers were received, notwithstanding the indorsement, the order was reversed.

Footnotes

  1. * Present, Mullin, P. J., and E. Darwin Smith and J. W. Gilbert, JJ.

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