
    Arthur G. Yates, Resp’t, v. James J. Guthrie, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed February 25, 1890.)
    
    Service—By mail—Judgment, when premature.
    
      The time for defendant to answer expired March 36th. He and his attorney swore positively that the answer was mailed at Caledonia on the evening of the 36th, and that was the postmark on the envelope. The letter was received at Rochester after eleven a. m. on the 37th, when it should, in ordinary course, have reached there hy the morning mail. Held, that the entry of judgment on the 37th was premature, and that as the answer set up a defense and merits were shown, the judgment should not he allowed to stand as security.
    Appeal from judgment of supreme court, general term, fifth department, affirming order of Monroe special term denying defendant’s motion to set aside a judgment and execution.
    
      William J. Byam, for app’lt; EarlB. Putnam, for resp’t.
    
      
       Reversing 26 N. Y. State Rep., 593.
    
   ANDREWS, J.

The fact that the answer was mailed at Caledonia on the evening of March 26, 1889, 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 Eochester post office on the 27th, but after eleven o’clock on the morning of that day. The affidavit of the assistant postmaster at Eochester states that a letter mailed at Caledonia on the 26th in ordinary course should have reached Eochester 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 26th. At most it affords ground for a conjecture that it may have been mailed after the 26th. 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 26th.

The entry of judgment on the 27th 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.  