Montgomery v. Ellis
New York Supreme Court
Motion to modify or . vacate a judgment under section 174 of the Code. This cause (which was an action under the Code for the delivery of personal property) was noticed and brought to trial in December 1850, and the plaintiff not appearing, the defendant took judgment for a dismissal of the complaint; which judgment was perfected on the fourth of January 1851, for five dollars costs, against the plaintiff.
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Motion to modify or . vacate a judgment under section 174 of the Code. This cause (which was an action under the Code for the delivery of personal property) was noticed and brought to trial in December 1850, and the plaintiff not appearing, the defendant took judgment for a dismissal of the complaint; which judgment was perfected on the fourth of January 1851, for five dollars costs, against the plaintiff. He now moves under the provisions contained in section 174 of the Code of procedure, either to modify the judgment by adding a provision that the defendant have a return of the property, or…
1Opinion of the Court
Gridley, Justice.
The plaintiff resists this application on the ground that in as much as this judgment is in favor of the defendant, he is not within the purview of the section, which only authorizes the court to relieve a party against whom a judgment has been taken within one year after notice of the judgment. It may be admitted that the defendant is not within the words of the act; but he is obviously within its meaning and spirit; and as the act is remedial in its nature and object, it should receive a liberal interpretation. Besides, I am of the opinion, it was the intention of the…
2Cases cited5 opinions
- Hunt v. RhodesSupreme Court of the United States · 1828
- Gaillard v. SmartNew York Supreme Court · 1826
- Soulden v. CookNew York Supreme Court · 1830
- Barheydt v. AdamsNew York Supreme Court · 1828
- Cowden v. PeaseNew York Supreme Court · 1833
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