Spaulding v. Lyon
New York Supreme Court
Motion for leave to issue execution, and motion to set aside judgment. On December 21, 1867, the plaintiff entered up judgment by default against the defendant, upon an affidavit of service made by the plaintiff’s attorney, which stated that his clerk had in the month of June, of that year, personally served the defendant with a summons in the action.
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Motion for leave to issue execution, and motion to set aside judgment. On December 21, 1867, the plaintiff entered up judgment by default against the defendant, upon an affidavit of service made by the plaintiff’s attorney, which stated that his clerk had in the month of June, of that year, personally served the defendant with a summons in the action. That deponent’s knowledge was derived from a statement of his clerk, made to him at the time of the service, and the entry made by him in the register at that time; that the clerk had subsequently left his employ, and could not be found after…
1Opinion of the Court
Upon the motion to vacate the judgment the following opinion was delivered:
Lawrence, J.
The proof of the service of the summons upon defendant was defective and insufficient, and did not authorize the entry of judgment against defendant. Section 138 of the Code requires that the person making the service should make his affidavit thereof, and section 139 provides that from the time of the service of the summons the court shall be deemed to have acquired jurisdiction, &c. Section 246 requires the plaintiff, in an action arising on contract, to file proof of personal service of the summons on…
2Cases cited1 opinion
- Lee v. WatkinsNew York Supreme Court · 1856