Karr v. Village of Alfred

about the first day of September, 1907, said Raymond Karr was injured on Hill street in the village of Alfred, N. Y., by falling on a cement sidewalk, on the side of the property of W. O. Place; that said Raymond Karr’s injury consisted of an injury to the left shoulder and caused a paralysis of said left arm, and also said Raymond Karr suffered other injuries to his person, and • especially to his nervous system to said Karr’s injury in the sum of $10,000.00. L. L. Karr.

“Sworn to before me this 6th day of February, 1908.

“Forrest M. Babcock, Notary Public. [Seal.]”

The latter having upon it the words, “Forest M. Babcock, Notary Public, Scio, Allegany County, N. Y.”

[1] The statement to comply with the statute must have been filed with the village clerk before March 1, 1908. The only filing claimed to have been established was a sending of this paper through the post office about February 6, 1908, and the receipt thereof by the clerks prior to March 1, 1908. Such filing was not made by sending the statement through the post office, unless it actually came into the hands of the clerk before the 1st of March, 1908. Gates v. State, 128 N. Y. 221 , 28 N. E. 373 ; Missano v. Mayor, 160 N. Y. 123 , 54 N. E. 744 .

The court so held in denying the motion for a nonsuit, and so charged the jury in the final submission of the case. The question was left to the jury whether the statement was in fact received by the clerk before March 1, 1908. This involved the question whether it was fnailed as claimed on or about February 6, 1908, as claimed in behalf of plaintiff, and, even if it was, then whether the clerk received it in due course about that time, or at a much later time, as claimed in behalf of defendant. There appeared to be little doubt but that the statement inclosed in an envelope both inclosed in a paper, called a “weather forecast,” under date of August 14, 1908, were found lying in a street of the village of Alfred on August 15,1908; that they were at once deposited in the post office, and the postmaster put them in the box of the clerk, and thus came into his hands. These papers must have been left in the street not earlier than August 1-15, 1908, because of the date of issue of the weather forecast. The envelope had no stamp upon it, but a broken portion of the post office cancellation stamp. There was nothing on the papers to indicate when the statement and envelope were first deposited in the post office. The clerk testified that he never saw the statement, that it never came into his hands until August 15, 1908. Unless he did actually receive it before March 1, 1908, there was no filing sufficient to comply with the statute.

In behalf of the plaintiff, it was claimed that the statement was mailed about February 6, 1908, and that the presumption thereupon was that it did in due course come to the clerk’s hands, and that his evidence was therefore not credible. The court charged the jury that this presumption would follow, but added:

“When we say ‘presumption,’ we simply mean this: That unexplained, yon would be justified in inferring that it was in fact received, but it is always open for the person to show by testimony, or legitimate evidence, that he in fact did not receive it.”

Ordinarily in preparing a paper in typewriting to be sent away and executed later the day of the month would be left blank to be filled in by the notary, the date being filled in when the paper was verified. The notary might not notice whether the date was correct or different from the time he was adding his certificate. He was not called as a witness upon the trial. It is difficult to appreciate why this statement, if prepared and verified before March 1, 1908, was not taken directly to the clerk’s office, and delivered there, instead of being sent by mail as claimed. The statement and envelope and the weather forecast did not have the appearance of being long exposed to the weather when found in the street. In fact, the latter paper could hardly have been in existence more than a day or two when found. How came these papers in the street? Who placed or dropped them there? The clerk could not have taken them from the post office in February, and have dropped them in the street 'at that time. Would he have been likely to have kept them all the time from February until August, and then have taken this means of making it appear he had never received them ? Or did Karr omit to file the claim within the six months, before March 1, 1908, then try to cover his omission by his application to the president of the village August 4th, and, failing in that, were these papers in some way brought into existence, and dropped in the street to be found later, as they were ? The plaintiff’s claim rests wholly upon the presumption that the clerk received the statement because of the claim that it was mailed. The defendant’s evidence, unless wholly discredited, shows the clerk did not receive it until August, which was too late.

[2] The finding by the jury that he did receive it before the 1st of March, 1908, was, I think, contrary to the evidence, and therefore should not be allowed to stand.

I think for the reasons stated the judgment and order should be reversed upon the law and the facts.

Judgment and order reversed, and new trial granted, with costs to appellant, to abide event. All concur; McLENNAN, P. J., and SPRING and KRUSE, JJ., also on ground that the notice was not sufficient.