Humphreys v. Roskam-Scott Co.

PER CURIAM. Before mailing, a clerk of the defendant’s attorney caused the envelope containing its answer to be weighed by a clerk in the post office and was informed that the required amount of postage thereon was “2 cents.” The package was sealed, properly addressed, a two-cent stamp affixed, and then deposited in the post office. After the refusal Of the plaintiff’s attorney to accept a delivery of the package, owing to a claim made by another clerk in the post office that there was still due two cents thereon, the package was again weighed by defendant’s attorney, and also in the post office, and the proof showed, and the court below so found, that it weighed, when mailed, less than one ounce, and that the requisite amount of postage had been paid. The facts in this case are therefore materially different from the facts in the case of Kuh v. Goodman, 119 App. Div. 148, 104 N. Y. Supp. 255. In that case the court said: “They [the defendants] did not show that they inclosed the answer in a properly prepaid wrapper, and the evidence showed that they did not.” The defendant’s service was complete when the answer was deposited in the post office. Elliott v. Kennedy, 26 How. Prac. 422. No motion costs, however, should have been allowed the defendant. Order modified, by striking therefrom the allowance of $10 motion costs, and, as modified, affirmed, without costs or disbursements of this appeal to either party.