
    Arthur G. Yates, Resp’t, v. James J. Guthrie, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Service — By mail — Postmark hot cohclusive.
    On the question as to the time of service of papers by mail the court is not hound by the appearance of the post-mark on the envelope, especially where it was mailed at a small uncommercial post office.
    Appeal from an order of the Monroe special term denying the defendant’s motion to set aside a judgment and execution issued thereon and all subsequent proceedings.
    
      Earl B. Putnam, for resp’t; William J. Byam, for app’lt.
   Macomber, J.

The learned judge at the special term, while denying the defendant’s motion to set aside the judgment and execution, opened the case so as to permit the defendant’s proposed answer to stand and the case to be tried upon the merits and apparently by consent of both sides, so far as this part of the order is concerned, granted an order of reference. The last day for answering was the 26th day of March, 1889. The affidavits of the defendant and his attorney are measurably positive that the answer which had been prepared was mailed upon that day by the attorney at the village of Caledonia properly addressed to the plaintiff’s- attorneys. In corroboration of this the envelope thereof with the post-mark clearly indicating the words and figures, March 26, is produced. In opposition to these facts there appears a strong affidavit by the assistant postmaster at Rochester to the effect that such mailing could not have taken place on the 26th of March, inasmuch as it was equally clear by the post-mark at Rochester that the letter was not received at Rochester until the 28th,- One of the plaintiff’s attorneys, also, testifies that he received, early in the morning of the 27th, mail matter from Caledonia that was mailed on the 26th. The rule is unquestioned, that the party addressed takes the hazards of the mail and that if an answer is actually deposited in the post office within the time limited by the statute the service is sufficient Yet we are not bound by the appearance of the post-mark upon an envelope; for it is not incredible that in the small uncommercial districts there is not that carefulness in changing the stamps that prevails in larger town». The affidavits of the defendant and his attorney cannot be deemed to be conclusive upon this matter, for the reason that they speak only from recollection. Hence it is that the judge at special term might well entertain doubts as to the principal fact involved in the motion, and, so entertaining them, he seems to have made a proper disposition of the motion.

- The order should be affirmed, with ten dollars costs and disbursements.

Barker, P. J., and Dwight, J., concur.  