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200 CENTRAL PARK SOUTH v. MARSHALL N. POSNER (05/23/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


- decided: May 23, 1968.

200 CENTRAL PARK SOUTH, INC., APPELLANT,
v.
MARSHALL N. POSNER, RESPONDENT.

Judgment unanimously affirmed, without costs or disbursements to either party. This court's decision in Salmon v. Sarno (265 App. Div. 114) is distinguishable from the instant case. Salmon was determined upon affidavits alone, submitted upon a motion to vacate a judgment. In the instant case, even though the matter originally came on at Trial Term on submitted facts, pursuant to CPLR 3222, the trial court directed and held a hearing on the limited issue involved, so that "both parties should be afforded the fullest opportunity of presenting all relevant evidence and testimony * * * on the merits." At the hearing the postman on the route, which included 15 East 49th Street, was produced by defendant, and he testified in such a manner as to enable the trial court to determine the issue before it as one of fact. In the Salmon case, the court did not pass upon the question of the effect of actual notice. Concur - Eager, J.P., Steuer, Capozzoli and Rabin, JJ.

19680523

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