Yates v. . Guthrie
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 1, 1889, which affirmed an order of Special Term denying a motion to vacate the judgment. This was a motion to vacate a judgment taken against defendant by default for want of appearance or answer. The material facts are stated in the opinion.
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Appeal from order of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 1, 1889, which affirmed an order of Special Term denying a motion to vacate the judgment. This was a motion to vacate a judgment taken against defendant by default for want of appearance or answer. The material facts are stated in the opinion. There is, legally, no issue, or doubt as to the time when defendant’s answer was served; and under all the circumstances of this case, the Court at General Term erred in holding that “ the affidavits of the defendant and his…
1Opinion of the CourtAndrews, J.
This action was commenced by the service-of summons and complaint March 6, 1889. The fact that the answer was mailed at Caledonia, where defendant’s attorney resided, on the evening of March 26, 1889, to plaintiff’s attorney at Rochester, where he resided, 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 Rochester post-office on the twenty-seventh, but after eleven o’clock on the morning of that day. The affidavit of the assistant postmaster at Rochester states…
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