Spence v. Beck
New York Court of Common Pleas
Appeal by defendant from a judgment of tbe First District Court, entered by default. On tbe return day of tbe summons, in .this ease, the defendant failed to appear until after tbe cause was called, and it was adjourned to tbe 25tb of June, 1856. On tlr^t day tbe defendant- was late, and did not enter the court room until after tbe canse bad been taken up, and the justice bad just finished taking tbe testimony of the plaintiff's witness.
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Appeal by defendant from a judgment of tbe First District Court, entered by default. On tbe return day of tbe summons, in .this ease, the defendant failed to appear until after tbe cause was called, and it was adjourned to tbe 25tb of June, 1856. On tlr^t day tbe defendant- was late, and did not enter the court room until after tbe canse bad been taken up, and the justice bad just finished taking tbe testimony of the plaintiff's witness. The appellant submitted, on tbe appeal, with tbe return, an affidavit that tbe justice refused to inform him of tbe nature of tbe plaintiff’s complaint, or…
1Opinion of the Court
Inge uiam, First Judge. —
None of tbe grounds, stated in tbe notice of appeal, appear in tbe return, but arc contradicted by it. We can never suffer a return to be impeached by affidavit. If tbe return is erroneous, it must be corrected by motion *277to the court. On the appeal we are governed by the statements contained therein.
The justice states that he orally communicated to the party the complaint, and offered to permit him to cross-examine the witness, but that the defendant refused and left the court.
If the facts sworn to by the appellant had been returned by the justice as occurring on the…
2Cited by2 opinions
- Young v. Conklin, New York County Courts1893
- Marsh v. PeckhamAppellate Division of the Supreme Court of the State of New York · 1935