Baxter & Fuller v. Arnold, Conklin & Bailey
New York Supreme Court
Separate motions by defendants Arnold and Bailey, (who appear by different attorneys,) to set aside the summons and the service thereof, and all other papers served in the action, for irregularity. The complaint was served with the summons, together with a copy of an injunction and affidavits, upon which the injunction was granted.
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Separate motions by defendants Arnold and Bailey, (who appear by different attorneys,) to set aside the summons and the service thereof, and all other papers served in the action, for irregularity. The complaint was served with the summons, together with a copy of an injunction and affidavits, upon which the injunction was granted. The summons contained the title of the cause, the name of the court and county, and required the defendants to appear and answer the complaint of the plaintiffs, a copy of which was stated to be therewith served on the defendants within twenty days, &c., and…
1Opinion of the Court
Welles, Justice.
I think the plaintiffs were strictly irregular in the form of the notice contained in the summons. It should have been simply that the plaintiffs would apply to the court for the relief demanded in the complaint. The 129th section of the Code evidently contemplates but one notice, or a notice under one of the subdivisions of the section, and not both. Perhaps the notice that the plaintiffs would take judgment in default of an answer for the sum mentioned might be regarded as surplusage. The defendants, however, in this case cannot be misled, as a copy of the complaint was…
2Cited by4 opinions
- Douglas v. HaberstroNew York Supreme Court · 1879
- Oliver v. FrenchNew York Supreme Court · 1894
- Coppernoll v. KetchamNew York Supreme Court · 1867
- Martine v. LowensteinNew York Supreme Court · 1875