Hill v. Warner
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Abram L. Warner, as executor of the last will and testament of Sarah Warner, deceased, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of September, 1898, as overrules said defendant’s answer as frivolous and directs judgment for the plaintiff for the relief demanded in the complaint.
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Appeal by the defendant, Abram L. Warner, as executor of the last will and testament of Sarah Warner, deceased, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of September, 1898, as overrules said defendant’s answer as frivolous and directs judgment for the plaintiff for the relief demanded in the complaint. The allegations of the complaint pertinent to this motion show that, on the 16tli day of September, 1895, the plaintiff recovered a judgment in the Superior Court of Buffalo against…
1Opinion of the Court
Spring, J.:
It was essential for the' plaintiff to aver that notice of the entry of the judgment was served upon the attorney for the appellant, and also upon the sureties. (Code Civ. Proc. § 1309; Porter v. Kingsbury, 71 N. Y. 588; Rae v. Beach, 76 id. 164 ; Chilson v. Howe, 23 N. Y. St. Repr. 26.)
The defendant, therefore, could put this fact in issue, and his answer does this by an allegation conforming to the requirements of the Code. Such an answer cannot be overruled as frivolous. (Trumbull v. Ashley, 26 App. Div. 356; Bennett v. Leeds Mfg. Co., 110 N. Y. 150 ; Byrne v. Hegeman, 24 App.…
2Cases cited4 opinions
- Bennett v. . Leeds Manufacturing Co.New York Court of Appeals · 1888
- Trumbull v. AshleyAppellate Division of the Supreme Court of the State of New York · 1898
- Byrne v. HegemanAppellate Division of the Supreme Court of the State of New York · 1897
- Stockton v. KenneyNew York Supreme Court · 1898
3Cited by1 opinion
- Wasserman v. MaslonAppellate Terms of the Supreme Court of New York · 1930