Oneida Nat. Bank & Trust Co. of Utica v. Manikas

Decision Date01 April 1958
Citation10 Misc.2d 671,175 N.Y.S.2d 612
PartiesONEIDA NATIONAL BANK & TRUST COMPANY OF UTICA, Plaintiff, v. Theodore John MANIKAS, Defendant.
CourtNew York County Court

John W. Bergin, Ilion, for plaintiff.

Philip D. O'Donnell, Herkimer, for defendant.

EDMUND A. McCARTHY, Judge.

This is a motion presented by the defendant for an order directing the entry of summary judgment in favor of the defendant and against the plaintiff and striking out the complaint of the plaintiff herein. This action was commenced on January 10, 1958 by the service of a summons and verified complaint.

The complaint alleges that on or about October 11, 1957 at Herkimer, the Trio-Pontiac-Cadillac, Inc., of Herkimer, and the defendant Theodore John Manikas entered into a written, retail installment contract whereby the former agreed to sell and the defendant agreed to buy a 1951 super deluxe automobile, and the defendant agreed to pay for said automobile a total time sale price of $719.93, $200 as a down payment and the remaining balance of $519.93 in 18 monthly installments, one of which was for $28.97 and 17 of which were for $28.88 each. First installment to be paid November 10, 1957 and subsequent payments on the 10th day of each consecutive month.

The automobile was delivered to the defendant Theodore John Manikas on October 11, 1957 and the defendant defaulted in the payment of the first installment due on the contract which was due on the 10th day of November, 1957. Following the default the automobile was repossessed and resold by the plaintiff at public auction to the highest bidder for the sum of $200. Said resale was held following the period of ten days after repossession and within 30 days after repossession. Expenses of retaking and sale amounted to $25 leaving a balance due for collection of $344.93. Reasonable attorney's fees for the collection of the deficiency were provided for in the contract being 15 per cent of the amount due or $51.74, and the action demanded judgment for $396.67, besides costs. All of the foregoing details are quoted from the plaintiff's complaint.

The defendant served his answer verified January 21, 1958, and in the first three numbered paragraphs in effect pleads a general denial. As a separate and complete defense he alleges that there was no down payment or any agreement to pay a down payment and that any provision to pay a down payment was not included in the paper signed by the defendant at the time he signed it. He further alleges that the automobile was defective and in the state of disrepair which was well known to the seller. And for a second complete defense the defendant alleges that the plaintiff failed to give the required notice under the section of the Personal Property Law governing sale of personal property and repossession.

This motion is addressed principally and directly to the second complete defense and in his moving papers defendant alleges that the complaint has no merit and that the plaintiff has no good and sufficient cause of action under the Personal Property Law because of the fact that it failed to give ten days' notice either personally or by registered mail and because of such failure that the plaintiff has waived its right to any deficiency on the resale. The plaintiff's answering affidavit contains an allegation that on December 12 written notice of sale was given to the defendant Theodore John Manikas by 'registered mail.' On the argument this allegation was corrected in open court and the plaintiff conceded that the notice was not given by registered mail but by certified mail and attached to the answering affidavit which is part of a cross motion under Section 117 of the Civil Practice Act for an order pursuant to Rule 113 of the Rules of Civil Practice and Section 476 of the Civil Practice Act striking out the defendant's answer and for summary judgment in favor of the plaintiff and against the defendant.

As part of the moving papers there is a photostatic copy of a receipt for certified mail stamped and dated Mohawk, New York, December 12, 1957, also a return receipt for certified mail Number 884237. The receipt on the first line bears the name Theodore Manikas and on the second line Mary E. Donato, and delivery date is 12/13/57. Mary E. Donato made an affidavit which is attached to the plaintiff's answering affidavit that she signed the return receipt on December 13, 1957, for a letter addressed to Theodore John Manikas who returned to the premises at 433 Main Street, Herkimer, New York later on that day and she saw him reading the letter which she had placed on the stairs for him. Section 79 of the Personal Property Law, Article 4 of the Uniform Conditional Sales Law provides for the compulsory resale by the seller as follows:

'The seller shall give to the buyer not less than ten days' written notice of the sale, either personally or by registered mail, directed to the buyer at his last known place of business or residence.'

It is conceded by all of the parties hereto that whatever notice was given to the defendant Theodore John Manikas was given by certified mail and not personally or by registered mail so that the issue in this matter resolves itself into the simple question, can certified mail be substituted for registered mail when the statute specifically provides for registered mail or personal service. The Uniform Conditional Sales Law is a creature of statute and all proceedings under such a statute must be made in full conformity with such statute. The proper service of notice of sale under Section 79 of the Personal Property Law is a condition precedent to the recovery of a deficiency judgment against the defendant so it takes on some semblance of a 'process' although it is not in and of itself a summons.

The fact that the notice was left on the stairs according to the affidavit of Mary Donato is not controlling as respects the right to a deficiency judgment. Commercial Credit Corporation v. Ornstein, 245 App.Div. 815, 281 N.Y.S. 321.

Certified mail was provided within the last few years as an economical way of mailing matter for which a receipt might be obtained.

It costs less than registered mail but it does not enjoy the same security or handling that registered mail receives. It is interesting to note in interpreting the intent of the Legislature that by the Laws of 1956 and 1957, the Agriculture and Markets Law, Section 174, Subdivision 5; the Alcoholic Beverage Control Law, Section 101-aa, Subdivision 6; the Election Law, Section 61, Subdivision Two, and Section 398; the Labor Law, Section 708, subd. 5; and the Lien Law, Section 189, subd. 1, were all amended to provide that various notices required by these respective laws and sections and subdivisions might be served by certified mail in addition to the usual requirements of registered mail or personal service. Apparently, all of these amendments received the approval of both houses of the Legislature and were signed by the Governor, at least they were not vetoed.

Chapter 50, Laws of 1957, permitting the sending of notice of denial or revocation of hunting, fishing, and trapping licenses by certified mail received the Governor's approval in the following language:

'This is one of a series of bills which would create alternate methods of mailing by various departments of the state government. Three bills permitting the Department of State to forward legal process by Certified Mail to defendant corporations or associations have been disapproved. In those instances it is...

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10 cases
  • People v. Psaty & Fuhrman, Inc.
    • United States
    • New York City Court
    • June 11, 1963
    ...decision, a grant of power (to suspend a permit) not specifically authorized by the language of the section. (Oneida National Bank Co. v. Manikas, 10 Misc.2d 671, 175 N.Y.S.2d 612; Delaney v. Central Valley Golf Club, Sup., 28 N.Y.S.2d 932, affd. 263 App.Div. 710, 31 N.Y.S.2d 834, affd. 289......
  • Montez v. Metropolitan Transp. Authority
    • United States
    • New York Supreme Court — Appellate Division
    • January 3, 1974
    ...397). Here the notice was sent by certified rather than registered mail, as directed by the statute (see Oneida National Bank & Trust Co. v. Manikas, 10 Misc.2d 671, 175 N.Y.S.2d 612), and, accordingly, service was not effected until actual receipt, which occurred after expiration of the ni......
  • Pacific Discount Co. v. Jackson
    • United States
    • New Jersey Superior Court — Appellate Division
    • July 10, 1961
    ...we compare the two mailing media involved. In this connection we note the case of Oneida National Bank & Trust Company of Utica v. Manikas, 10 Misc.2d 671, 175 N.Y.S.2d 612 (Cty.Ct.1958). In that case notice of the sale of the automobile at public auction was given to defendant by certified......
  • Proppe's Will, In re
    • United States
    • New York Surrogate Court
    • April 19, 1965
    ...a provision which appears to have been intentionally and purposefully omitted by the Legislature (Oneida Nat. Bank & Trust Co. of Utica v. Manikas, 10 Misc.2d 671, 175 N.Y.S.2d 612). The intention of the Legislature must be given paramount consideration as to the spirit and purpose of the l......
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