Jackson ex dem. Mentz v. Stiles
New York Supreme Court
HAMILTON moved that the default entered in this cause should be set aside, and O'Neal, the tenant in possession, be admitted as defendant in the place of the cncmol piprtnr casual ejector* The declaration in this cause, with the notice, was served on O'Neal the Wednesday preceding the last J 1 ° May term, who, during the same week, employed an attorney to defend the cause.
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HAMILTON moved that the default entered in this cause should be set aside, and O'Neal, the tenant in possession, be admitted as defendant in the place of the cncmol piprtnr casual ejector* The declaration in this cause, with the notice, was served on O'Neal the Wednesday preceding the last J 1 ° May term, who, during the same week, employed an attorney to defend the cause. On the 2d July last, the attorney of O'Neal, sent to the attorney of the plaintiff, a notice of his being employed to defend the suit, and at the same time, during the same month, sent copies of the consent rule and plea,…
1Per curiam
The excuse given by the attorney of the defendant, for not entering into the consent rule in season, is frivolous and inadmissible. But here the tenant swears to merits ; and as no trial has been lost, we will not let the possession be changed, in an action of ejectment, without an opportunity to the tenant to defend it. It was said, in the case of Jackson, ex dem. Rosekrans, v. Stiles, (1 Caines, 503.) that the court would set aside a default, to protect the possession of the tenant, in an action of ejectment, when they would not do it in any other action. We, therefore, grant the y motion,…
2Cases cited1 opinion
- Jackson ex dem. Rosekrans v. StilesNew York Supreme Court · 1804
3Cited by4 opinions
- Dickey v. LyonSupreme Court of Iowa · 1865
- Fratt v. WoodwardCalifornia Supreme Court · 1867
- Moses v. Central Park, North & East River RailroadNew York Court of Common Pleas · 1893
- Territory v. TaylorSupreme Court Of The Territory Of Dakota · 1877