Turner v. Burrows
New York Supreme Court
Motion to set aside, judgment for irregularity, This suit was commenced in Nevember, 1840. The defendant’s default for want of a plea having been duly entered, the plaintiff, pursuant to notice for that purpose, proceeded on the 15th of February last to .execute a writ of inquiry, and had his damages assessed at $3328,87. The defendant on the same day gave notice of a motion to be made at the next March special term to open the default.
Read the full summary
Motion to set aside, judgment for irregularity, This suit was commenced in Nevember, 1840. The defendant’s default for want of a plea having been duly entered, the plaintiff, pursuant to notice for that purpose, proceeded on the 15th of February last to .execute a writ of inquiry, and had his damages assessed at $3328,87. The defendant on the same day gave notice of a motion to be made at the next March special term to open the default. He also insisted that the inquisition had been taken in violation of an order to stay proceedings. On the 26th of February the defendant’s attorney agreed…
1Opinion of the Court
By the Court, Bronson, J.
The 63d rule does not apply to a case like this. We cannot allow an attorney to disregard his verbal agreement and thus set aside a judgment where there is no pretence of a defence on the merits. As the defendant refused to perform the condition on which the cognovit was received, the plaintiff was at liberty to treat the arrangement as at an end and proceed to judgment on the inquisition.
It has been said that writs of inquiry of damages are not process within the statute relating to the testes and return of process. (Cook v. Tuttle, 2 Wendell, 289.) Still, according…
2Cases cited1 opinion
- Cook v. TuttleNew York Supreme Court · 1829