Jack London Products, Inc. v. Edkiss

17 Misc. 2d 453, 187 N.Y.S.2d 671, 1959 N.Y. Misc. LEXIS 3655

• Court: New York Supreme Court
• Decided: May 21, 1959
• Status: Published

Opinion

Samuel M. Gold, J.

Motion to direct plaintiff’s attorney to accept the answer is granted.

On April 16,1959 service of summons was made on defendant. On May 6, 1959 service of answer was made by mail. Insufficient postage was placed on the envelope and on May 8, 1959 the mail was received by plaintiff’s attorney after payment of 4 cents postage due. On the same day plaintiff’s attorney returned the answer with a notice of rejection, stating that the same was not served within the time prescribed by section 263 of the Civil Practice Act. The case cited by plaintiff, in opposition to this motion, holds for the proposition that validity of service depends upon whether or not the papers actually came into the hands of the attorney for the adverse party. If such failure to put proper postage on the envelope does not in fact prevent the actual receipt of the papers, (the plaintiff’s attorney having paid the postage due) it is an immaterial defect and does not invalidate the service (Appeal Print. Co. v. Sherman, 99 App. Div. 533). Time of mailing answer and not time of its receipt constitutes the service (Jackson & Perkins v. Rose Fair, 278 App. Div. 890).

The service of the answer having been valid and timely, the plaintiff’s attorney is directed to accept same. Answer shall be served within 10 days after filing of this order and publication thereof.