Baker v. Curtiss
New York Supreme Court
The action was commenced bv the service of a summons the 22d December last: and on the 11th day of January the defendant’s attorney served notice of appearance and demanded a copy of the complaint. February first, the defendant’s attorney caused a copy of affidavit and notice of this motion to be served upon the plaintiff’s attorney by leaving them in a conspicuous place in his office, in his absence.
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The action was commenced bv the service of a summons the 22d December last: and on the 11th day of January the defendant’s attorney served notice of appearance and demanded a copy of the complaint. February first, the defendant’s attorney caused a copy of affidavit and notice of this motion to be served upon the plaintiff’s attorney by leaving them in a conspicuous place in his office, in his absence. The same day, late in the afternoon, a copy of the complaint was served personally upon the defendant’s attorney at his office. The defendant’s attorney did not make any objection or…
1Opinion of the Court
Marvin, Justice.
It is objected by the plaintiff that the Code does not authorize this motion (§ 274); that the motion should have been for judgment of discontinuance, under the 2d R. S. 350, § 25-26, which provisions of the Revised Statutes, it is claimed, are not repealed; and sections 469, 470, 471 of the Code, and the 90th rule are referred to. By section 274 of the Code, the court may dismiss the complaint with costs in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against…
2Cases cited1 opinion
- Wirts v. NortonNew York Supreme Court · 1841
3Cited by2 opinions
- Iowa Mining Co. v. Bonanza Mining Co.Nevada Supreme Court · 1881
- Gamble v. HanchettNevada Supreme Court · 1912