Opinion
Submitted January 27, 1890
Decided February 25, 1890
William J. Byam for appellant.
Putnam Slocum for respondent.
This action was commenced by the service of summons and complaint March 6, 1889. The fact that the answer was mailed at Caledonia, where defendant's attorney resided, on the evening of March 26, 1889, to plaintiff's attorney at Rochester, where he resided, is established by the positive affidavits of the defendant and his attorney, and is corroborated by the postmark on the envelope which enclosed it. The letter was received at the Rochester post-office on the twenty-seventh, but after eleven o'clock on the morning of that day. The affidavit of the assistant postmaster at Rochester states that a letter mailed at Caledonia on the twenty-sixth in ordinary course should have reached Rochester at the latest by the morning mail. But this does not contradict the positive testimony that the letter was put in the mail on the twenty-sixth. At most, it affords ground for a conjecture that it may have been mailed after the twenty-sixth. But it is more consistent with probabilities that some delay occurred in forwarding the letter from Caledonia after its deposit, especially as the letter is stamped as received there on the twenty-sixth.
The entry of judgment on the twenty-seventh was, therefore, premature, and the right of the defendant to have the judgment set aside could not be clogged with the condition that it should stand as security, the answer setting up a defense and merits being shown.
The orders of the Special and General Terms should be reversed and the motion to set aside judgment granted.
All concur.
Orders reversed and motion granted.