Legal Opinion

President of Merchants' Bank v. Mills

New York Court of Common Pleas

Decided September 15, 1854Published

This was an appeal from an order, entered at a special term, denying the defendants’ motion to vacate a judgment obtained in this court. The plaintiffs were a foreign corporation. Neither defendant appeared in the cause. The judgment had been entered by default, without at any time filing the security for costs, prescribed in 2 R. S., 3d ed., p. 552, marginal page m, § i.

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This was an appeal from an order, entered at a special term, denying the defendants’ motion to vacate a judgment obtained in this court. The plaintiffs were a foreign corporation. Neither defendant appeared in the cause. The judgment had been entered by default, without at any time filing the security for costs, prescribed in 2 R. S., 3d ed., p. 552, marginal page m, § i. The motion was founded upon the irregularity above referred to, and the defendants also sought to open their default on the ground of mistake and on the merits of the action. They alleged mistake in delivering their papers…

1Opinion of the Court

By the Court. Ingraham, First J.

The plaintiffs being a foreign corporation, brought this action without filing security, as provided by the Revised Statutes. The defendant did not appear and the plaintiffs obtained judgment by default. A motion was made at special term to set. aside the judgment for irregularity, because security for costs was not filed before suit, and the motion was denied.

It must be conceded that filing security for costs was not necessary to give jurisdiction to the court. It was certainly an irregularity for which the proceedings would have been set aside if the motion…

2Cases cited1 opinion

  1. Bank of Michigan v. JessupNew York Supreme Court · 1837

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