
    Yates v. Guthrie.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1889.)
    Judgment—Default—Service of Answer.
    On a motion to set aside a judgment by default it was insisted that on the last day for answering, March 26th, the answer addressed to plaintiff’s attorney was served as authorized by Code Civil Proc. N. Y. § 797, by being placed in' the post-office at Caledonia directed to plaintiff’s attorney at Rochester, and affidavits of defendant and his attorney stating that such was their recollection were filed. The envelope in which the answer was sent was postmarked at Caledonia “March 26. ” The postmaster at Rochester testified that it could not have been mailed on March 26th, as it appeared by the postmark, of his office, that it was not received there until March 28th. Plaintiff’s attorney made affidavit that early in the morning of March 27th he received mail matter postmarked at Caledonia on March 26th. Held, that an order refusing to set the judgment aside would not be disturbed.
    Appeal from special term, Monroe county.
    . Action by Arthur G. Yates against James J. Guthrie. A judgment was entered against defendant by default, and from an order denying a motion to set the judgment aside defendant appeals.
    
      Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      William J. Byam, for appellant. Earl B. Putnam, for respondent.
   Macomber, J.

The learned judge at the special term, while denying the defendant’s motion to set aside the judgment and execution, opened the ease 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 postmark-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 postmark 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 postmark 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 towns. The affidavits of the defendant and bis 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 $10 costs, and disbursements. All concur.  