Wiggins v. Tallmadge
New York Court of Appeals
Motion to dismiss appeal. In the month of May 1849, the plaintiffs commenced an action against the defendant before Robert A. Ogden, a justice of the peace of the county of Saratoga.
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Motion to dismiss appeal. In the month of May 1849, the plaintiffs commenced an action against the defendant before Robert A. Ogden, a justice of the peace of the county of Saratoga. On the 19th day of May, which was the return day of -the summons, the parties appeared before the justice, and the plaintiffs complained against the defendant, and alleged that he had obstructed a certain highway in the town of Malta (Saratoga county) by building three several fences in and across the same,* and had also injured said highway by digging holes therein. The plaintiffs, as commissioners of highways…
1Opinion of the Court
By the Court, Johnson, J.
The general question involved in this motion has been settled in Pugsley vs. Kesselburgh, decided at this term (ante p. 402). Two grounds of distinction between the cases are relied upon.
1st. That the admission of service of complaint and summons, required to be given by defendant, was not given. The defendant executed the proper. undertaking under section 56 of the Code of 1849, but has not literally complied with its terms. The object of the undertaking when it provides for this admission, seems only to be to ensure the defendant’s appearance in the Supreme Court,…
2Cases cited1 opinion
- People ex rel. Proctor v. Albany C. P.New York Supreme Court · 1838
3Cited by1 opinion
- Brown v. BrownNew York Court of Appeals · 1851