Mayor of New York v. Finn — 33 N.Y. St. Rep. 764

Majority

p. 764

The Mayor, etc., of New York, App’lt, v. Michael Finn et al., Resp’ts.

(New York Superior Court,

General Term,

Filed November 3, 1890.)

Headnote

1. Municipal Corporations—Contract—Breach.

A contract with the city provided that the contractor was to commence the work on such a day and at such point as Ihe commissioner of public works should designate. In an action by the city for a breach of such contract, Held, that before the contractor could be said to have failed and neglected to enter on the performance of the work, the commissioner must have designated a day on which he should commence.

2. Same—Service oe notice.

While it may be presumed that a letter properly addressed, with the postage paid, and deposited in the post-office, is delivered at the address named on the envelope, where it does not appear to what place the letter is addressed, such a presumption cannot arise.

3. Same.

Proof that there was d letter copied in the department letter book, addressed to the contractor, and that about the same time the department messenger delivered to the contractor a sealed envelope, of the contents of which he had no knowledge, without proof that the city had no other contract with such contractor, or that no other letters were delivered to him about the same time, is insufficient to prove that the letter in the envelope was the original of that in the letter book.

Appeal by plaintiff from judgment entered upon a dismissal of complaint.

Action upon a bond given for faithful performance of a contract.

John J. Townsend, for app’lt; L. L. Kellogg, for resp’ts.

Plaintiff alleges in the complaint that Finn, the contractor, failed and neglected to enter upon the performance of .the work mentioned in the contract between himself and the plaintiff and unnecessarily delayed the prosecution of said work in violation of the said contract; that the Commissioner of Public Works notified Finn in writing that in his opinion the said work was unnecessarily delayed in violation of the provisions of the contract, and that unless the said work was resumed on or before the 5th day of June, 1883, the work would be declared

p. 765

abandoned and would bo relet. That Finn wholly neglected and failed to comply with the requirements of the said notice.

To sustain this cause of action the plaintiff must prove that Finn wholly failed and neglected to enter upon the performance of the contract By the contract Finn was to commence the work on such day and at such point or points as the Commissioner of Public Works should designate.

Before Finn could be said to have failed and neglected to enter upon the performance of the contract, the Commissioner of Public Works must have designated a day upon which he was to commence work.

Plaintiff attempted to prove the service of such a notice upon Finn. The court below held that the evidence was not sufficient to prove the service of the notice. In that ruling we concur.

The evidence relied on by plaintiff was the production of a book which purported to contain press copies of letters sent from the department, and in which appears a copy of a letter to Finn, dated August 2, 1882.

Jeremiah, superintendent of street improvements, testified that he signed the letter and it was approved by the commissioner; that after the letter was signed it was copied in a letter book, addressed, and put in the mail by either the clerk or the messenger of the bureau. The messenger testified that he mailed all letters of that character and notices to the contractors to begin work at that time; that he had no recollection of having mailed that letter; that he copied the letters in the press book, put the letters in envelopes, sealed them, got stamps and mailed them.

This appears to be all the evidence as to the service of the notice.

There is no evidence of the place to which the letter was addressed, nor of the residence of Finn at the time.

While it may be presumed that a letter properly addressed with the postage ¡laid and deposited in the postofifi.ee is delivered at the address named on the envelope, where it does not appear to what place the letter is addressed, such a presumption cannot arise, and even if we can presume from the course of business proved that the letter was mailed and the postage paid, there is no presumption that the messenger of the defendant knew the correct address of Finn and that the letter was addressed to him at any particular place.

The evidence therefore failed to justify a presumption that the letter reached Finn.

We also think that the service of the notice of May 23, 1883, was not proved. The messenger of the department says that about that date he delivered to Finn an envelope directed to him, about the contents of which he knew nothing, and which he received from the deputy commissioner of public works, who is now dead. No one is produced who can testify as to the contents of that envelope.

There also appeared in the copy letter book a letter addressed to Finn and to bis sureties, dated May 23, 1883. No one was jjroduced who could testify as to having seen the original letter,

p. 766

nor what was done with it after it was copied. All that was proved was that there was a letter copied in the book dated May 23, 1883, and which was addressed to Finn, and that at about that time a messenger from the department delivered a sealed envelope to Finn of the contents of which he kn$w nothing, with no evidence that the plaintiff had no other contract with Finn and that no other letters were delivered to him about the same time.

This is clearly insufficient to prove that the letter in the envelope was the original of the copy in the book, and the court was justified in refusing to admit the letters in evidence.

The counsel for the plaintiff on the trial conceded that with the notice of May, 1883, out of the case the complaint must be dismissed, and as we are of the opinion! hat both notices were properly excluded the dismissal was right and the judgment should be affirmed, with' costs.

Freedman, J., concurs.