Retan v. Drew
New York Supreme Court
Demurrer to replication. The declaration was in assumpsit. The defendant pleaded non-assumpsit as to the several sums mentioned in the declaration, except as to the sum of $52,50, and as to that sum a tender made before the commencement of the suit, to wit, on the fourth day of November, 1835. The plaintiff replied that before the tender, to wit, on the third day of November, he filed a declaration in the clerk’s office of this court at Geneva, and entered a rule to plead,…
Read the full summary
Demurrer to replication. The declaration was in assumpsit. The defendant pleaded non-assumpsit as to the several sums mentioned in the declaration, except as to the sum of $52,50, and as to that sum a tender made before the commencement of the suit, to wit, on the fourth day of November, 1835. The plaintiff replied that before the tender, to wit, on the third day of November, he filed a declaration in the clerk’s office of this court at Geneva, and entered a rule to plead, and on the fifth day of November caused a copy of the declaration and a notice of the rule to plead to be served on the…
1Opinion of the Court
By the Court,
Bronson, J.
Although the action was not, for every purpose, commenced until a copy of the declaration was served on the defendant, 2 R. S. 347, § 1, 15 Wendell, 554, yet the plaintiff had before the tender employed an attorney to bring the suit, a declaration had been prepared and filed and a rule entered to plead ; and the plaintiff was proceeding with all diligence to serve the defendant with a copy of the declaration and notice of the rule. The plaintiff had incurred costs which the defendant was liable to pay, and the tender was not sufficient without an offer to pay the costs…
2Cases cited2 opinions
- Hanmer v. WilseyNew York Supreme Court · 1837
- Edmondstone v. ThomsonNew York Supreme Court · 1836
3Cited by7 opinions
- Brown v. FergusonNew York Supreme Court · 1846
- Smith v. AndersSupreme Court of Alabama · 1852
- Studwell v. CookeSupreme Court of Connecticut · 1871
- Randall & Durant v. BaconSupreme Court of Vermont · 1876
- Bassil v. ElmoreNew York Supreme Court · 1866
2 more not listed; retrieve them via the Exa API.