Fitch v. Devlin
New York Supreme Court
The plaintiff sued the defendant in the justices’ court of the city of Troy. The summons was returned by the constable personally served, and on the return day the plaintiff appeared, put in his complaint, and introduced evidence on which the justice gave judgment against the defendant for $8,18 damages and $1,21 costs. The defendant did not appear before the justice.
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The plaintiff sued the defendant in the justices’ court of the city of Troy. The summons was returned by the constable personally served, and on the return day the plaintiff appeared, put in his complaint, and introduced evidence on which the justice gave judgment against the defendant for $8,18 damages and $1,21 costs. The defendant did not appear before the justice. The defendant • appealed to the Rensselaer county court, and after alleging certain errors in law, he also alleged as error «in fact, that the summons was not.served on him. It was shown, by affidavits before the county court,…
1Opinion of the Court
By the Court, Parker, J.
The summons issued by the justice was never served on the defendant. It was served on his son, during the absence of the defendant from home. The constable, however, made a return of personal service on the defendant, on which the justice proceeded ex parte, and rendered *48judgment. Though the facts alleged were clearly established by the affidavits, and are not controverted by the plaintiff, it is contended that they afford no ground for relief on appeal, and that the only remedy of the defendant is by an action against the constable, for a false return. Such was the…
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