Hilton v. Thurston
New York Court of Common Pleas
Motion to set aside judgment for irregularity. The judgment in this case was entered upon a failure to answer ; the usual affidavit of service of the summons and complaint being filed. The defendant now denied the fact of service, by his own affidavit, and also produced the affidavit of one Plumbager, his book-keeper, who stated that some time in November he was served with a summons intended for Thurs-ton. He told the young man making the service, that he was not Thurston.
Read the full summary
Motion to set aside judgment for irregularity. The judgment in this case was entered upon a failure to answer ; the usual affidavit of service of the summons and complaint being filed. The defendant now denied the fact of service, by his own affidavit, and also produced the affidavit of one Plumbager, his book-keeper, who stated that some time in November he was served with a summons intended for Thurs-ton. He told the young man making the service, that he was not Thurston. “Well,” said the messenger, “you may give the papers to him; ” and he left them upon a chair, near-by.
1Opinion of the CourtDaly, J.
(Orally).—The judgment is not irregular. It was entered upon a regular affidavit of the service of the summons and complaint.
The defendant’s affidavit now states that the person serving the summons and complaint, left them with the defendant’s foreman, Plumbager. If the facts were as stated by the defendant, he knew that an attempt had been made to commence the suit by leaving the papers at his place of business, with his bookkeeper. Prom the admission made by him, it appears that he consulted his attorney, and learning that the service was insufficient, he concluded to let the plaintiff go…
2Cited by1 opinion
- O'Connell v. GallagherAppellate Division of the Supreme Court of the State of New York · 1905