Stafford v. Williams & Kellogg
New York Supreme Court
Error to Oneida C. P. Williams & Kellogg sued Stafford by summons returnable at the justice’s office, in Utica, on the 8th day of March, 1845, at two o'clock in the afternoon. The return of the justice states “ that at the time and place above specified for the return of the said summons, the said plaintiffs appeared,” by attorney: “ the defendant, nor any for him, did not appear.
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Error to Oneida C. P. Williams & Kellogg sued Stafford by summons returnable at the justice’s office, in Utica, on the 8th day of March, 1845, at two o'clock in the afternoon. The return of the justice states “ that at the time and place above specified for the return of the said summons, the said plaintiffs appeared,” by attorney: “ the defendant, nor any for him, did not appear. Plaintiffs declared against the defendant as follows, to wit—in assumpsit upon an account for goods, wares and merchandize, hats, caps, &c., sold and delivered, of which the following is a copy: “ Spencer H.…
1Opinion of the Court
By the Court, Bronson, Ch. J.
The language of the return favors the objection, that the justice did not wait an hour for the defendant after the time specified for the return of the summons, before he proceeded with the cause. (2 R. S. 233, § 46.) But that is not the necessary and unavoidable inference from the words of the return. It states that the plaintiffs ap peared “at the time;” and that the defendant did not appear; and then, commencing with a new period, it adds, that the plaintiffs declared. It is quite possible that the declaration did not follow immediately; and that a whole hour…
2Cases cited2 opinions
- Northrup v. JacksonNew York Supreme Court · 1834
- Fuller v. WilcoxNew York Supreme Court · 1838
3Cited by6 opinions
- Knight v. WillsonNew York Supreme Court · 1890
- Low v. . PayneNew York Court of Appeals · 1850
- Nichols v. Place, New York County Courts1893
- People ex rel. Ballard v. MossAppellate Division of the Supreme Court of the State of New York · 1898
- People ex rel. Ballard v. MossAppellate Division of the Supreme Court of the State of New York · 1898
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