Real Art Furniture Corp. v. State ( 1961 )

William Gf. Easton, J.

Pursuant to order of this court, the trial of the instant claim was reopened on June 23, 1961 for the purpose of affording both parties an opportunity to adduce further evidence as to (1) the timeliness of filing of the claim, and (2) whether or not claimant had assigned or released its claim.

Upon the reopening, a certified copy of an affidavit of service recorded in the Westchester County Clerk’s office was received in evidence. This affidavit indicates that on September 26, 1951 claimant was served with notice of appropriation. The record of such affidavit is presumptive evidence of due service of such notice of appropriation. (Highway Law, § 347, subd. 9.) Claimant adduced insufficient evidence to overcome this presumption.

In view of the fact that the instant claim was filed on June 26, 1956, such filing was not timely and the claim must be dismissed.

This court’s prior decision in this matter rendered August 23, 1960 is hereby vacated. The claim is hereby dismissed.