14 Second Ave. Realty Corp. v. Szalay

16 A.D.2d 919, 229 N.Y.S.2d 722, 1962 N.Y. App. Div. LEXIS 8806

Opinion

Appeal from order entered on December 20, 1961 unanimously dismissed on the ground that the notice of appeal was not timely served, with $20 costs and disbursements to plaintiff-respondent. The record indicates that the order granting the application of plaintiff to dismiss the counterclaim is dated and entered December 20, 1961; that the notice of appeal filed by defendant-appellant is dated February 12, 1962. The affidavit of service sworn to December 27, 1961 indicates service by mail on said date of the said order with notice of entry. Service by mail is complete regardless of delivery where the mailing itself complies with all requisites. (Anthony v. Schofield, 265 App. Div. 423, 425.) The appellant denies receipt of the order. In some circumstances such denial would raise an issue which would require a hearing for its resolution. However, the affidavits here raise no triable issue as to the mailing. Concur — Rabin, J. P., McNally, Eager, Steuer and Bergan, JJ.