
    Emanuel Steinhardt and Simon Steinhardt, Appellants, v. David Bingham and Arthur N. Bingham, Respondents.
    
      Sale of merchandise—what is insufficient proof of the mailing of a letter of advice of its shipment.
    
    Where a contract for the sale of corn requires the vendors to “furnish to buyers steamer’s name and quantity loaded within five days of date of Bill of Lading,” which was April 24, 1897, testimony of an employee of the vendors that he dictated a letter dated April 27, 1897, and signed it; that he inclosed the original invoices covering the shipments; that he did not know whether he mailed the letter or not; that he inclosed it in an envelope and placed the letter, after it was inclosed in the envelope, in the mailing box in his office, is insufficient to establish that the letter was mailed within five days of the date of the bill of lading.
    Appeal by the plaintiffs, Emanuel Steinhardt and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of June, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      A. Blumenstiel, for the appellants.
    
      Jacob F. Miller, for the respondents.
   Ingraham, J.:

When this case was before this court on the former appeal, it appeared without dispute that the plaintiffs had advised the defendants in writing of the steamer’s name and the-quantity of corn loaded, within five days of date of bill of lading by mailing a letter from New Orleans on April 27, 1897, which was a compliance with the contract as we construed it. (53 App. Div. 286.) Upon this trial I do not think that there was a substantial change of the proof that would affect the construction of the contract; but the plaintiffs failed to prove that they mailed the letter which furnished the information .required within five days from the date of the bill of lading. The only evidence on that point was the testimony of the witness Stratton, who was the manager of the plaintiffs’ grain department. He testified that he dictated a letter dated April 27, 1897, and signed it; that he inclosed the original invoices covering the shipments; that he did not know whether he mailed the letter or not; that he inclosed it in an envelope and placed the letter, after it was inclosed in the envelope, in the mailing box in his office. The bill of lading was dated April 24, 1897, and the contract required that plaintiffs should “ furnish to buyers steamer’s name and quantity loaded within five days of date of Bill of Lading.” The defendants refused to accept the corn on the ground that plaintiffs had not complied with this provision of the contract.

At the end of plaintiffs’ case defendants moved to dismiss the complaint, one of the grounds being that there was no proof that ' plaintiffs furnished to the defendants the steamer’s name and quantity loaded within five days of date of bill of lading, and no proof of the mailing of such notice within siieh time. . This motion ^ was denied, and defendants excepted. One of the defendants then testified that the first notice that defendants had of the shipment was the. presentation on September 30, 1897, of the draft drawn on defendants by the plaintiffs for the contract price of the shipment; that defendants refused to pay the draft and telegraphed and wrote plaintiffs of such refusal, basing it upon the ground that notice of_shipment had not been given as required by the contract; that he had not received the letter of April twenty-seventh on April thirtieth or earlier; that he- did not know when it was received. A clerk of the defendants testified that he did not recollect receiving the letter of April twenty-seventh; that he thought the invoices' were in the defendants’ office on the first, of May.

At the end of the case the defendants renewed the motion to dis.miss upon the same ground, which motion was granted. I think that this was entirely insufficient to prove that the letter of April twenty-seventh was mailed within five days of the date of the bill of lading, and for that reason I think the plaintiffs failed to show a compliance with this contract, and that the complaint was properly dismissed.

The judgment should, therefore, be affirmed^ with costs.-

McLaughlin and Hatch, JJ., concurred; O’Brien, J., concurred in result.

Van Brunt, P. J.:

.1 concur in result only. I adhere to opinion expressed on former appeal.

Judgment affirmed, with costs.  