Legal Opinion

Gardner v. Teller

New York Supreme Court

Decided September 15, 1846PublishedCited by 1 opinion

Motion by defendant to set aside declaration and notice, for irregularity. The defendant’s affidavit showed, that on the 24th of June, 1846, he was served with a copy declaration purporting to be filed in this cause, in this court, with a notice thereon endorsed as follows: “ Take notice that you are required to plead to the declaration, filed pursuant to the statute, in this cause, of which the within is a copy, in'ten (10) days after service of a copy of the said…

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Motion by defendant to set aside declaration and notice, for irregularity. The defendant’s affidavit showed, that on the 24th of June, 1846, he was served with a copy declaration purporting to be filed in this cause, in this court, with a notice thereon endorsed as follows: “ Take notice that you are required to plead to the declaration, filed pursuant to the statute, in this cause, of which the within is a copy, in'ten (10) days after service of a copy of the said declaration and of this notice, or that your default will be entered, dated, &c.” It appeared, from defendant’s papers, that on…

1Opinion of the Court

Bronson, Chief Justice.

Serving a declaration with notice to plead in ten days, instead of twenty days, was irregular. But the defendant’s attorney served a notice of retainer generally, which is an appearance where no bail is required. {Buie 26.) And an appearance is a waiver of irregularities in the process to bring the party into court. (7 Cow. 366; 7 John. 207). The declaration and notice are in the nature of process- Motion denied, with $7 costs.

2Cases cited2 opinions

  1. Rowley v. StoddardNew York Supreme Court · 1810
  2. Pixley v. WinchellNew York Supreme Court · 1827

3Cited by1 opinion

  1. Coppernoll v. KetchamNew York Supreme Court · 1867

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