Greystone Holding Corp. v. Lennox

197 Misc. 463, 98 N.Y.S.2d 937, 1950 N.Y. Misc. LEXIS 1862

• Court: New York Supreme Court
• Decided: February 24, 1950
• Status: Published

Opinion

Davis, J.

Motion to dismiss petition and notice of application for review under article 13 of the Tax Law upon the ground service thereof was not effected within the time limited by section 290-a of the Tax Law. The undisputed facts are that an attempt was made to serve the city clerk shortly after 5:00 p.m., within the .time limit. His office had been closed legally at 5:00 p.m. Failing in this attempt the attorney for the petitioner deposited the papers in a postal box at 11:00 p.m. They were received at the general post office and stamped as of 2:00 a.m. the following morning. At 9:00 a.m. they were in the hands of the city clerk. The city has been in no way embarrassed by the receipt of the papers nine hours later than the time limit but on the other hand it has the right to question the service. The normal impulse would be to hold the service good and frankly this court has attempted to arrive at such a result. There is no provision for service by mail, and I cannot read into the statute that delivery to the postal authorities is delivery to the city clerk. The motion is therefore granted. There are twenty-two other applications upon the same state of facts. Decision on these will be held in abeyance in order that the petitioner herein may test this determination in the Appellate Division. Order on notice at Special Term.