Van Benthuysen v. Stevens
New York Supreme Court
Motion to set aside complaint. . A summons and complaint were served on the defendant Stevens on the 29th of September. The summons was entitled in the supreme court, but no court is mentioned in the complaint. On the 17th of October, the defendant Stevens, who resides at Batavia, and appears in person, served papers for this motion, by mailing the same at the place of his residence, upon the plaintiff’s attorney, who resides at Albany.
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Motion to set aside complaint. . A summons and complaint were served on the defendant Stevens on the 29th of September. The summons was entitled in the supreme court, but no court is mentioned in the complaint. On the 17th of October, the defendant Stevens, who resides at Batavia, and appears in person, served papers for this motion, by mailing the same at the place of his residence, upon the plaintiff’s attorney, who resides at Albany. The term for which the motion was noticed was held on the 28th of October—eleven days after the papers were mailed. The papers were, in fact, received by the…
1Opinion of the Court
Harris, Justice.
It was objected, upon the motion, that the papers served by mail, eleven days before the motion, could not be read. I was at first inclined to think the objection well taken : but I am satisfied that the defendant was entitled to use these papers in connection with the notice of the motion which had been personally served. When that notice was served, the papers were in the hands of the plaintiff’s attorney. They were none the worse for the fact that they had come to his possession through the post-office. It was enough that he had them. Nothing could be gained by delivering…
2Cited by4 opinions
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- Adams v. KellyOregon Supreme Court · 1903
- Deutermann v. PollockAppellate Division of the Supreme Court of the State of New York · 1899
- Deutermann v. PollockAppellate Division of the Supreme Court of the State of New York · 1899