James v. Kirkpatrick
New York Supreme Court
This was a motion by defendant to set aside a judgment for irregularity. The ground was, that no court whatever was mentioned in the summons served upon the defendant. The service was made on the 5th December 1850. Judgment was entered on the 6th January 1851. There was no appearance by the defendant in the action.
1Opinion of the Court
Parker, Justice.
It was decided in Walker vs. Hubbard (4 How. Pr. R. 154), that the summons must apprize the defendant in what court it was returnable. The defendant in this case had no knowledge whether he was sued in this court or in the County Court, or Mayor’s Court; nor did the defendant learn it was in this court, till his attorney was so informed by the plaintiffs’ attorney, several weeks afterwards. The judgment entered upon such defective process is irregular and must be set aside.
The objection that this motion is too late is unavailable. The defendant did not know in what court to…
2Cited by2 opinions
- Tamburo v. P & C Food Markets, Inc.Appellate Division of the Supreme Court of the State of New York · 1971
- Cassidy v. BoylandCity of New York Municipal Court · 1888