p. 361sending of letters requiring acts to be done in and about them, or that no letters on other matters were delivered about the same time.
Before Freedman and Ingraham, JJ.Decided November 3, 1890.Appeal by plaintiff from judgment entered upon a dismissal of complaint.
The facts sufficiently appear in the opinion.
William H. Clark, counsel to the corporation, and John J. Townsend of counsel, for appellant, on the questions considered in the opinion, argued, among other things :—
I. The city claims that the proof was, prima facie, sufficient to charge the defendant Finn with receipt of the notice of August 2, 1882, and that it was error to have excluded the paper. The witness Walsh, although he had no special recollection of this particular notice, testified clearly in regard to the course of business in his bureau ; that he at that time mailed all letters of that character in the bureau, and that he also before mailing them copied the letters in the press-book, sealed them in envelopes, put postage-stamps on them, and deposited, them in the U. S.' mail box. This proof showing the course of business was all that was needful to establish a prima facie case of sending this notice under the rule. Abbott's Trial Evidence, 433 ; Howard v. Daly, 61 N. Y. 362 , 366 ; it was also proper to send the notice by mail. The Mayor v. Moore, 52 Hun, 139 . The notice should have been admitted and the question left to the jury to decide whether the defendant Finn received it or not.II. As to the notices of May and August, 1883, as to which the court held that there had been a failure of proof. In regard to the notice dated May 23,1883, the witness, Walsh, although he never saw the origi
p. 362nal of the paper, testifies that on or about that date he delivered a paper in an envelope to the defendant, Finn, in person. He received it from the deputy commissioner, Mr. Hamlin, now dead, and he also received from Mr. Hamlin at the same time papers addressed to the defendants Eiley and Donovan, a significant coincidence, tending to show that the notices related to this contract in which all three of the persons written to were concerned. The witness Walsh is corroborated by the witness Mr. Clifford, the chief clerk, who testified to the course of business in respect to the originals of the notices of which the letter book was copies, were shown him. He also knew at the time of the trouble over Finn’s contract. The same proof was made in respect to the August notice. An important fact, and one tending materially to establish prima facie the receipt of the notice by Finn, that is to throw upon the defendant Finn the burthen of disproving the receipt of the notice, is the fact testified to by Walsh, that the papers were delivered by him to Finn personally. This should be given its due weight in connection with the technical character of the defence set up.III. The plaintiffs are entitled to haye every intendment and fair and legitimate inference and presumption which can be drawn from the testimony taken in their favor, and the court must apply this rule in considering the testimony. Cook v. N. Y. C. &. H. R. R. Co., 1 Abb. Ct. of Ap. Dec. 432, 433 ; Fairfax v. The Same, 8 J. & S. 128, p. 136.Arthur H. Smith, attorney, for respondent Finn ; L. Lafiin Kellogg, attorney for respondents Donovan and Eiley, and of counsel for all the respondents, on the questions considered in the opinion, argued, among other things :—
I. There is in this case no proof of the address on
p. 363the letter supposed to have been mailed, or of the prepaying of the postage. These are necessary in order to raise the presumption of service by mail. McCoy v. The Mayor, 46 Hun, 269 ; Rosenthal v. Walker, 111 U. S. 185 ; Bentley v. Whittier, 105 Mass. 391 ; Bell v. Lycoming Fire Ins. Co., 19 Hun, 238 .II. The notices of May and August, were not proved. The entire proof is as follows : Mr. Walsh says that he received, in May and August, envelopes which were sealed, which he delivered to Mr. Finn in person and mailed to Mr. Donovan. That he did not know what the contents of the envelopes were, and could not swear positively to the identity of Riley and Donovan. The effect of this testimony is, that he delivered a sealed envelope, the contents of which he does not know, to Finn certainly, and to some one whom he believed to be Donovan. There is no force in the claim that the notices have been proved to have been given from the evidence tending to show the course of business in the office.Plantiff 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 fifth day of June 1883, the work, would be declared abandoned and would he 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
p. 364contract 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 the 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 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 letters 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
p. 365postage paid, there is no presumption that the messenger of the plaintiff 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 his sureties, dated May 23, 1883. No one was produced who could testify as to having seen the original letter, 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 knew nothing, with no evidence that the plaintiff had no other contracts with Finn and that río 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 that both notices were properly excluded, the dismissal was right, and the judgment should be affirmed, with costs.
Freedman, J., concurred.