Pignolet v. Daveau
New York Court of Common Pleas
Motion to set aside a summons. It appeared that the summons served upon the defendant was in the ordinary form for a money demand on contract, and required the defendant “ to answer the complaint in this action, a copy of which is herewith served upon you,” &c., or if he failed to answer, the plaintiff would take judgment for an amount specified, with interest.
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Motion to set aside a summons. It appeared that the summons served upon the defendant was in the ordinary form for a money demand on contract, and required the defendant “ to answer the complaint in this action, a copy of which is herewith served upon you,” &c., or if he failed to answer, the plaintiff would take judgment for an amount specified, with interest. No complaint having been served with the summons, the defendant’s attorney addressed to the plaintiff the following notice or letter: N. Y. Common Pleas.—Pignolet v. Daveau. New York, Oct. 18, 1859. Sir—The summons, as served upon…
1Opinion of the Court
Daly, First Judge.
The summons was irregular. It was not accompanied by the service of a copy of the complaint, and did not state that the complaint was, or when it would be, ffled. The letter of Morange was a notice of appearance. Baxter v. Arnold, 9 How. 445; Quick v. Merrill, 3 Cai. 133. It was signed by him as the defendant’s attorney, and informed the plaintiff’s attorney that he, Morange, would waive the irregularity in the summons, and accept, as the defendant’s attorney, the service of a copy of the complaint. The proper course for the plaintiff’s attorney, then, was to serve a copy of…
2Cases cited3 opinions
- M'Kenster v. Van ZandtNew York Supreme Court · 1828
- Doe Ex Dem. Barbarie v. EslavaSupreme Court of the United States · 1850
- Quick v. MerrillNew York Supreme Court · 1805