
    Emanuel S. Kuh and Others, Appellants, v. Nathan Goldman, Otherwise Known as Nicholas Goldman, and Isidor R. Miller, Respondents.
    First Department,
    May 10, 1907.
    Process — defective service by mail—judgment by default not opened-as matter of right..
    When legal papers are served by mail without postage'being fully prepaid, the attorney to whom they are addressed is under no obligation to pay the postage ' • due and may refuse to receive the package tendered by the postman.
    When after, such attempted service Of an answer, the plaintiff enters^ judgment by default, the court has do power to set. aside the- judgment as irregular. The'remedy Of the defendant is to apply as a favor to open the default and for leave to come in and defend. ‘
    Appeal by the plaintiffs, Emanuel S. Kuh and others, from an order of the Supreme Court, made at the' New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March,- 1907* granting the defendants’ motion to set aside a judgment on the ground that the entry thereof was irregular.
    
      Stanley Holcomb Molleson, for the appellants.
    
      Joseph. Sapinshy of counsel {FrarJenihaler <& Sapinshy, attorneys], for the respondents.
   Per Curiam:

This action was brought by the plaintiffs, claiming to be the holders prior to maturity and for value of seven promissory notes. . made by the" defendants. On- the evening of the last day for defendants to serve their answer, a copy thereof Was deposited in a post-office box on the corner of Forty-third street, and Seventh avenue, addressed to the attorney for the plaintiffs* at 42 Broadway.Oh the next morning a postman presented-to the plaintiffs’ attorney an envelope which bore on its upper left-hand corner the names of the defendants’ -attorneys, with a line drawn through the same, having in the upper right-hand corner a two-ceht postage stamp, and-in addition a, two-cent postage due stamp., which' envelope the postman offered to deliver to the plaintiffs’ attorney on the payment of the two cents postage due. The attorney refused to pay the amount demanded and the postman thereupon did not deliver the said envelope and took it away with him.

Thereafter, plaintiffs entered judgmentas.fordefault in theserviee of the answer. Defendants subsequently made a motion to-set aside the judgment'so entered upon the ground of- irregularity. The learned court, in its opinion, said: “ While perhaps, technically (the plaintiffs’ attorney), may have been right, his conduct does' not com-, mend itself to the court,” and granted the motion to vacate the judgment, without costs and without conditions. From the order so made this appeal is taken.

This order cannot be sustained. If the plaintiffs’ practice-was technically right there was no irregularity in the entry of the judgment and hence this motion should not have been granted. The - defendants moved solely upon the ground of their legal right to .have the judgment set aside as irregular. They did not apply to the favor of the court to open a défault and for leave to come in and defend. This being an action on promissory notes, if they had so moved it would have been necessary to have established a .'meritorious defense and to have submitted and served a. proposed answer. The court might then, as a matter of favor, have granted '. the motion to open the default upon such terms as it deemed proper. The defendants did not take that course but made their application based upon a .strict legal right. That - being so, their proceedings must be judged by the same standard, and they failed to make it appear that their service by mail was in accordance with law. Why they should have resorted to a service by mail when the attorneys for both parties had offices in the" same city is not explained. ■ .

They did not show that they had inclosed the answer in a properly prepaid wrapper and the evidence showed that they did not. Where the service by mail is regular, the párty to whom the paper is addressed takes the risk of the failure Of the mail (Schenk v. McKie, 4 How. Pr. 246); but an attorney is not bound to take a letter from, the post-office charged with postage though lie' has reason to believe it contains law papers, and. .the effect of his omission is a default of his adversary. (Anonymous, 19 Wend. 81.) Where a plea is served by mail,.the .whole postage, must be paid. If it appears that- part is paid and part is due, the service is had. (Bross v. Nicholson, 1 How. Pr. 158; cited in Sherman v. Gregory,. 42 id. 484.)

Tliere was, therefore, .no obligation upon the part of the plaintiffs’ attorney to pay the postage due, and hé hada right to refuse to receive the package tendered by the postman. When strict compliance with' the' technicalities' of the law is demanded' by one party to a litigation, he Cannot complain if he is'defeated by the application ' ' óf'tlie' samé rule. ■ • . '

'The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and the judgment should be reinstated.

. f Present — Patterson, P. J., Ingraham, Laughlin,. Clarke and Scott, JJ, - ■ -

Order reversed, with ten dollars costs. and disbursements, and motion denied, with ten .dollars costs, and judgment reinstated Settle order on notice.  