McCurdy Co. v. Wegner

129 Misc. 230, 220 N.Y.S. 213, 1927 N.Y. Misc. LEXIS 818

• Court: New York Supreme Court
• Decided: January 28, 1927
• Status: Published

Opinion

Per Curiam.

Judgment unanimously reversed upon the law, and new trial granted, with thirty dollars costs to appellant to abide the event.

It was error for the court to refuse to charge that the jury must find that the plaintiff received the notice of termination before the jury could render a verdict for the defendant. It was also error to charge that the jury could find for the defendant, if they found the notice was sent. The contract here, according to the defendant’s proof, was entered into by use of the mails. The defendant, therefore, could have used the mails in giving notice of the termination of the contract. But, if the defendant used the mails, the latter became the agent for the defendant, and unless the notice was delivered the contract was not terminated. (Peabody v. Satterlee, 166 N. Y. 174; Crown Point Iron Co. v. Ӕtna Insurance Co., 127 id. 608; Beakes v. DaCunha, 126 id. 293; Steinhardt v. Bingham,, 182 id. 326; Herter v. Mullen, 52 App. Div. 325.)

It was for the jury to say whether notice in .fact was received. The presumption is that, when a letter is duly mailed, it is received by the person to whom it is addressed. That presumption is rebuttable, and it is for the jury to say, after considering the presumption and the proof given by the person addressed, whether a letter has been received.

Present — Cropsey, McCrate and Lewis, JJ.