Maher v. Comstock

Headnote

A plea served by mail, on the last day for pleading, after the close and departure of. the mail for its place of destination, the time of such departure being well known to the party serving, held bad.

Motion hy defendants to set aside default of Allen Comstock and all subsequent proceedings for irregularity.—It appears on the part of defendants that the declaration was served 19th November last on defendant A. Comstock. On the 9th December following and before six o’clock, P. M., defendants’ attorneys served on plaintiff’s attorneys plea and notice, by enclosing same, together with another plea, in a wrapper, addressed to plaintiff’s attorneys at Albany, and putting same in post-office at Troy, and paying the postage (eighteen and three-quarter cents) thereon. On the 11th December, defendants’ attorneys were informed by plaintiff’s attorneys that A. Comstock’s default was entered on the 10th December, which defendants’ attorneys on examination found to be the fact. On the part of plaintiff it appears that the declaration was served on A. Comstock on the 18th November last. On the morning of the 10th

December last, no plea having been received, his default was entered and judgment perfected. On the morning of the 11th December plaintiff’s attorneys received from the post-office a package from defendants’ attorneys, post marked at Troy December 10th, containing a plea in this and another cause, with affidavits and notices of set off. On the said 11th December, plaintiff’s attorneys advised defendants’ attorneys of the receipt of the plea, &c., and objected that it was served too late. Plaintiff’s attorneys show that a daily mail from Troy to Albany closes at Troy at four o’clock, P. M., and departs at five o’clock, P. M.; that a letter deposited in the post office at Troy, after the closing of said mail, would not leave the city of Troy until five o’clock in the afternoon of the succeeding day. Also that the hour of closing said mail and its departure for Albany is publicly known to all business men in Troy.