People v. Campbell
New York Supreme Court
Appeal from an order refusing a peremptory mandamus. An alternative writ of mandamus was obtained directed to Andrew J. Campbell, clerk of the Third District Court in the city of Hew York, requiring him to issue execution upon a judgment recovered by default in that court. On the day of the recovery of the judgment, the justice of the Fifth District Court was sitting in the Third District in the absence of the local justice.
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Appeal from an order refusing a peremptory mandamus. An alternative writ of mandamus was obtained directed to Andrew J. Campbell, clerk of the Third District Court in the city of Hew York, requiring him to issue execution upon a judgment recovered by default in that court. On the day of the recovery of the judgment, the justice of the Fifth District Court was sitting in the Third District in the absence of the local justice. Subsequently, by order of the local justice, the judgment was opened and the default excused. The plaintiff in the action applied to the clerk of the court for an…
1Opinion of the Court
By the Court. —Clerke, J.
The statute of 1862 (Laws of 1862, 975), is emphatically a remedial statute. It gives a Justice of the District Courts, in the city of Hew York, authority, “ upon motion before him, to open and set aside any default made in any action tried before or by him.” These are the words. This power no justice of the peace before possessed; so that, whatever may have been the circumstances under which the default was taken, the party suffering by the default was without remedy. He may have been taken sick, or assaulted, or hindered by a long procession, or any other crowd in…
2Cited by3 opinions
- Greene v. Montana Brewing Co.Montana Supreme Court · 1905
- Friedberger v. StulpnagelAppellate Terms of the Supreme Court of New York · 1908
- Feist v. Third Ave. RailroadNew York Court of Common Pleas · 1895