Walker v. Johnson
New York Supreme Court
Motion on the part of the plaintiffs to set aside an order obtained by the defendant at the last circuit, under the 258th section of the Code of 1851, dismissing the plaintiff’s complaint, for irregularity and on the merits. The action having been noticed for trial and put on the Calendar by both parties, and the plaintiff not appearing on its regular call, the defendant’s counsel applied for and obtained the order in question.
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Motion on the part of the plaintiffs to set aside an order obtained by the defendant at the last circuit, under the 258th section of the Code of 1851, dismissing the plaintiff’s complaint, for irregularity and on the merits. The action having been noticed for trial and put on the Calendar by both parties, and the plaintiff not appearing on its regular call, the defendant’s counsel applied for and obtained the order in question. The following facts appeared on the motion to set aside the order: The action was for a breach of a covenant of seizen contained in a conveyance of land. The summons…
1Opinion of the Court
Mullett, Justice.
The question of irregularity depends on the effect of the offer made by the defendant on the 19th of May. By the 385th section of the Code of 1851, the defendant may at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken, against him, for the sum or property, or to- the effect therein, specified, with costs. If the plaintiff accept the offer, and give-notice thereof in writing within ten days, he-may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk must thereupon…
2Cases cited1 opinion
- Pomeroy v. Hulin & BeebeNew York Supreme Court · 1852
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- Douglass v. MacdurmidCity of New York Municipal Court · 1885
- T. M. Cobb Co. v. Superior CourtCalifornia Supreme Court · 1984
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