Mayor v. Smith
The Superior Court of the City of New York and Buffalo
Appeal from special term. Action by the mayor, aldermen, and commonalty of the city of New York against James M. Smith and others. From an order granting a motion to vacate a judgment against defendant Smith, plaintiffs appeal.
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Appeal from special term. Action by the mayor, aldermen, and commonalty of the city of New York against James M. Smith and others. From an order granting a motion to vacate a judgment against defendant Smith, plaintiffs appeal. Affirmed, The plaintiffs claim that the action was commenced by the service of a summons on the defendant Smith on July 21, 1868, and on the other defendants on July 24 and 25, 1868. That all the defendants appeared in the action August 4, 1868, by Frank S. Smith, as attorney. The notice of appearance is entitled in the “supreme” court, and is for “the defendants,”…
1Opinion of the CourtMcAdam, J.
The plaintiffs are certainly guilty of great loches in allowing an action commenced in 1868 to slumber 24 years, when, according to their theory, they were entitled to take judgment as by default for want of an answer in December, 1868. The defendant was sued as surety on a lease made to one Allerton, who, at the time the plaintiffs claim they were entitled' to judgment, owned real estate, and was solvent. He is now irresponsible. Under such circumstances, the defendant cannot be censured by being seemingly technical as to the plaintiffs’ practice in regard to the manner and form in which…
2Cases cited11 opinions
- Kerr v. . KerrNew York Court of Appeals · 1869
- Brown v. . NicholsNew York Court of Appeals · 1870
- Denton v. NoyesNew York Supreme Court · 1810
- American Insurance v. OakleyNew York Court of Chancery · 1842
- National Park Bank v. . Ninth National BankNew York Court of Appeals · 1871
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