McKey v. Lockner
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, John Lookner and another, from a judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 10th day of February, 1899, affirming a judgment of a justice of the peace, and also from an order entered in said clerk’s office on the 26th day of September, 1898, denying the defendants’ motion for an amended return from the justice who tried the action.
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Appeal by the defendants, John Lookner and another, from a judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 10th day of February, 1899, affirming a judgment of a justice of the peace, and also from an order entered in said clerk’s office on the 26th day of September, 1898, denying the defendants’ motion for an amended return from the justice who tried the action. The defendants leased a small farm of the plaintiff, who is not a resident of the county of Niagara, where the defendants resided. The lease…
1Opinion of the Court
Spring, J.:
The counsel for the appellants bases his contention that the justice erred in changing the summons upon section 2883 of the Code of Civil Procedure. That section was evidently designed to keep alive a plaintiff’s cause of action as against the operation of the Statute of Limitations. The constable is to make a return, and, if the summons has not been served, a second one may be issued by the same justice within twenty days after the issuance of the first, and still a. third one for like cause, and they relate back and have the same effect as if seasonable service of .the first…
2Cases cited1 opinion
- Gould v. MahaneyAppellate Division of the Supreme Court of the State of New York · 1899