Jenkins v. Brown
New York Supreme Court
Error from the Wayne common pleas. Brown sued Jenkins in a justice’s court, by summons, returnable on the 27th July, 1836. The summons was returned personally served, and at the return day, the plaintiff appeared, and put in his declaration : the defendant did not appear, and the cause was adjourned, on the motion of the plaintiff, to the second day of August, then next.
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Error from the Wayne common pleas. Brown sued Jenkins in a justice’s court, by summons, returnable on the 27th July, 1836. The summons was returned personally served, and at the return day, the plaintiff appeared, and put in his declaration : the defendant did not appear, and the cause was adjourned, on the motion of the plaintiff, to the second day of August, then next. On the adjourned day the parties appeared ; the plaintiff with his witnesses ready for trial ; the defendant read and filed with the justice an affidavit excusing his default in not appearing on the return day, and generally…
1Opinion of the Court
By the Courts
Cowen, J.
Mr. Lawton has submitted a very handsome, not to say a convincing argument, in favor of the justice’s power to grant the plaintiff in error leave to plead on the terms which he offered. I am strongly inclined to think, with him, that notwithstanding the 47th section of 2 R. S. 165, 2d ed. and § 119 of the same statute, the justice might, on the cause shówn, have given the leave without violating either the spirit of that section or any decision of this court; in short, that he had the same power in this respect as a court of record: which is to let in a defendant to…
2Cited by8 opinions
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- Mead v. DarraghNew York Court of Common Pleas · 1857
- Doty v. Campbell, New York County Courts1884
- McClair v. AustinSupreme Court of Colorado · 1892
- Pregenzer v. BurleighNew York Court of Common Pleas · 1893
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