Clark v. M'Farland
New York Supreme Court
This suit was commenced by declaration, served on the sixth day of January last. On the sixteenth of the same month the attorney for the defendants, residing at Salem, in Washington county, enclosed a notice of retainer and plea in a letter directed to the attorney for the plaintiff’, at his residence in the city of Troy, and put the same into the post-office at Salem, to be forwarded by mail; on the evening of the same day, the attorney for the plaintiff called at the…
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This suit was commenced by declaration, served on the sixth day of January last. On the sixteenth of the same month the attorney for the defendants, residing at Salem, in Washington county, enclosed a notice of retainer and plea in a letter directed to the attorney for the plaintiff’, at his residence in the city of Troy, and put the same into the post-office at Salem, to be forwarded by mail; on the evening of the same day, the attorney for the plaintiff called at the post-office in Troy, and took a letter from his box post-marked Salem, ,JV*. ¥., the postage thereon being unpaid;…
1Opinion of the Court
By the Court,
Sutherland, J.
Where there is an affirmative proceeding, as where a party asks for a rule against the opposite party, to which he is not entitled without proof of the actual service of a paper or notice, it is not enough to entitle him to the rule to shew that such paper or notice was put into the mail, directed to the party to be affected by it: so it was held by this court in Hudson v. Henry, 1 Caines, 67, where notice of a motion for judgment as in case of nonsuit was sent per mail. But where a party acts only on the defensive, he is allowed to send his papers or notices per…
2Cases cited2 opinions
- Hudson v. HenryNew York Supreme Court · 1803
- Stafford v. ColeNew York Supreme Court · 1800
3Cited by5 opinions
- Drake v. ComptrollerAppellate Division of the Supreme Court of the State of New York · 1951
- Appeal Printing Co. v. ShermanAppellate Division of the Supreme Court of the State of New York · 1904
- Perl v. New York City Housing AuthorityNew York Supreme Court · 1962
- Sears v. Tenhagen, New York County Courts1906
- Carpenter v. New-York & Newhaven RailroadThe Superior Court of New York City · 1855