Clark v. M'Farland , 10 Wend. 634 ( 1834 )

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 mail; and on shewing that by the course of the mail they must have reached the opposite party in season to have saved a default, the service in this manner will be considered sufficient to prevent the default, unless the receipt of the papers is positively denied by the person to whom they were addressed, as was held in the case of Stafford v. Cole, 1 Johns. Cas. 413, where a plea sent by mail, which the attorney for the defendant swore he believed was received by the plaintiff’s attorney in time to save a default, was held to be a good service, the plaintiff’s attorney not denying that he received it. In this case it is admitted by the plaintiff’s attorney that the plea was in his hands, or at least that he took a-letter from the post-office which he observed contained papers in this cause, and which it is manifest he believed would prevent him from obtaining a default. He was therefore apprised of the intention of the defendants to defend the cause, and that in all probability the necessary measures had been taken to effect that object. We cannot, therefore, say that he had not notice of the retainer of an attorney to defend, previous to thet entry of the default; and if he had notice, the default wag irregular. Had the attorney not seen the contents of the letter, or had he, on observing the post-mark, refused to take the letter from the office, we perhaps could not have held him chargeable with notice; but as it is, we must consider him as having notice. The motion must be granted, and with costs.