McCartney v. Betts
New York Supreme Court
Motion by defendant to set aside default, fyc., imth costs.—Action, assumpsit, declaration contains a count for goods, wares, &c., sold and delivered and the usual money counts; venue laid in Livingston county; declaration served on defendant 21st November last.
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Motion by defendant to set aside default, fyc., imth costs.—Action, assumpsit, declaration contains a count for goods, wares, &c., sold and delivered and the usual money counts; venue laid in Livingston county; declaration served on defendant 21st November last. On the 11th December last a plea and affidavit were drawn and sworn to by defendant, and copies were served on the clerk at Albany, (defendant’s attorney residing at Troy), for plaintiff’s attorney residing in Livingston county. Plaintiff’s attorney had entered default and judgment, before receiving the copy plea and affidavit. On…
1Opinion of the Court
Beardsley, Justice.
If service of copy affidavit w7as not sufficient, then the default was regular, and defendant must be let in on terms, the judgment standing as security. The original affidavit should have been served, a copy was not a compliance with the rule (22 Wend., 644, note; Laws 1840, p. 333, §7 ; 25 Wend., 699). On payment of the costs of entering the default and all subsequent proceedings, including the costs of opposing this motion, the defendant may be let in to plead, the judgment standing as security.
Rule accordingly.
2Cases cited1 opinion
- Wirts v. NortonNew York Supreme Court · 1841