Mayor of New York v. Finn

26 Jones & S. 360, 33 N.Y. St. Rep. 764

• Court: The Superior Court of New York City
• Decided: November 3, 1890
• Status: Published

Opinion

By the Court.—Ingraham, J.

Plantiff alleges in the complaint that Finn, the contractor, failed and neglected to enter upon the performance of the work mentioned in the contract between himself and the plaintiff, and unnecessarily delayed the prosecution of said work in violation of the said contract; that the commissioner of public works notified Finn, in writing, that, in his opinion, the said work was unnecessarily delayed in violation of the provisions of the contract, and that unless the said work was resumed on or before the fifth day of June 1883, the work, would be declared abandoned and would he relet. That Finn wholly neglected and failed to comply with the requirements of the said notice.

To sustain this cause of action the plaintiff must prove that Finn wholly failed and neglected to enter upon the performance of the contract. By the contract Finn was to commence the work on such day and at such point or points as the commissioner of public works should designate. Before Finn could be said to have failed and neglected to enter upon the performance of the contract, the commissioner of public works must have designated a day upon which he was to commence work. Plaintiff attempted to prove the service of such a notice upon Finn. The court below held that the evidence was not sufficient to prove the service of the notice. In that ruling we concur.

The evidence relied on by plaintiff was the production of a book which purported to contain press copies of letters sent from the department and.in which appears a copy of a letter to Finn, dated August 2, 1882. Jeremiah, superintendent of street improvements, testified that he signed the letter and it was approved by the commissioner. That after the letter was signed it was copied in the letter book, addressed, and put in the mail by either the clerk or the messenger of the bureau. The messenger testified that he mailed all letters of that character and notices to the contractors to begin work at that time ; that he had no recollection of having mailed that letter ; that he copied the letters in the press book, put the letters in envelopes, sealed them, got stamps and mailed them.

This appears to be all the evidence as to the service of the notice. There is no evidence of the place to which the letter was addressed, nor of the residence of Finn, at the time.

While it may be presumed that a letter properly addressed with the postage paid and deposited in the post-office is delivered at the address named on the envelope where it does not appear to what place the letters is addressed, such a presumption cannot arise, and even if. we can presume from the course of business proved that the letter was mailed and the postage paid, there is no presumption that the messenger of the plaintiff knew the correct address of Finn and that the letter was addressed to him at any particular place. The evidence, therefore, failed to justify a presumption that the letter reached Finn.

We also think that the service of the notice of May 23, 1883, was not proved. The messenger of the department says that about that date he delivered to. Finn an envelope directed to him, about the contents of which he knew nothing, and which he received from the deputy commissioner of public works who is now dead. No one is produced who can testify as to the contents of that envelope.

There also appeared in the copy letter book, a letter addressed to Finn and to his sureties, dated May 23, 1883. No one was produced who could testify as to having seen the original letter, nor what was done with it after it was copied. All that was proved was that there was a letter copied in the book, dated May 23, 1883, and which was addressed to Finn, and that at about that time a messenger from the department delivered a sealed envelope to Finn of the contents of which he knew nothing, with no evidence that the plaintiff had no other contracts with Finn and that río other letters were delivered to him about the same time. This is clearly insufficient to prove that the letter in the envelope was the original of the copy in the book, and the court was justified in refusing to admit the letters in evidence.

The counsel for the plaintiff on the trial conceded that with the notice of May, 1883, out of the case the complaint must be dismissed, and as we are of the opinion that both notices were properly excluded, the dismissal was right, and the judgment should be affirmed, with costs.

Freedman, J., concurred.