Van Doren v. Liebman

11 N.Y.S. 769, 34 N.Y. St. Rep. 752, 1890 N.Y. Misc. LEXIS 2352

• Court: New York Court of Common Pleas
• Decided: December 3, 1890
• Status: Published

Opinion

Daly, C. J.,

(orally.) When the question was submitted to the jury whether notice of dissolution was received by the plaintiff, the defendant was entitled to the benefit of the presumption that a notice properly directed and duly mailed and post-paid was received by the party to whom it was addressed. Under the ruling in this case he was deprived of the benefit of that presumption. The jury were not permitted to deliberate upon the case with that presumption in their minds. The fact that a notice was properly directed and duly mailed raises the presumption that it was received in course of mail. The jury might believe, notwithstanding such mailing, that the plaintiff never received it, and give a verdict accordingly, as they did in this case; but they were bound to take into consideration the mailing Of the notice, and the presumption raised thereby. Of that the defendant was deprived in this case. [Counsel. Does your honor note what the judge says? That it was for them to determine whether notice was sent through the mails?] That does not cure the error. He was requested to charge the jury that if they believed the notice was mailed then a presumption that it was delivered arose from that fact. He said he would not charge that; yet such is the 'law as stated in Austin v. Holland, 69 N. Y. 571. Judgment reversed, and a new trial ordered, costs to abide the event. All concur.