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Vernon v. Gillen Printing Co.

39 N.Y.S. 172 Court N.Y. City Ct. Decision date 1896-04-27 English

Delivered by MCCARTHY, J.

Contents

Majority

p. 172
(16 Misc. Rep. 507.)
VERNON et al. v. GILLEN PRINTING CO.
(City Court of New York, General Term.
April 27, 1896.)

Headnote

Service of Answer by Mail—Deposit in Mail Box—Time of Service. In ease of the service of an answer by mail, on proof of a deposit of the envelope containing the answer in a letter box in New York City at 7:30 p. m. it will be presumed that it was taken to the post office before 12 p. m., so as to prevent a default.
Appeal from special term.
Action by George E. Vernon and others against the Gillen Printing Company. From an' order vacating a judgment for plaintiffs, they appeal.
Affirmed.
p. 173
Argued before FITZSIMONS and MCCARTHY, JJ.
Harold Vernon, for appellants.
Smith & Cochrane, for respondent.

The point made by the plaintiffs is extremely technical. It might have some weight if it appeared that the envelope containing the answer had been deposited in the mail box near midnight, after the last regular tour from the branch office for the collection of the matter contained in the mail boxes in that district. In the city of New York a deposit of matter in such mail box prior to this is a compliance with the law. It appears here that the envelope was deposited in the mail box at 7:30 p. m. on February 27, 1896, and we must therefore assume that this envelope and its contents were collected and taken to the branch post office in that district before 12 p. m., and this is particularly so in this case, since the defendant’s attorney swears, and it is not denied, that when he called the next day on the plaintiffs’ attorney in regard to the judgment herein being taken by default, the plaintiffs’ attorney admitted that he had received the answer with the envelope that day, and that the postmark on the envelope showed that it had been mailed on the 27th day of February, 1896. This was sufficient. Order affirmed, with costs.