Gardner v. Teller
New York Supreme Court
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
- Rowley v. StoddardNew York Supreme Court · 1810
- Pixley v. WinchellNew York Supreme Court · 1827
3Cited by1 opinion
- Coppernoll v. KetchamNew York Supreme Court · 1867