Van Benthuysen v. Lyle
New York Supreme Court
The complaint was served February 25, 1850, so that the time for answering expired on the 17th of March. On the 16th of March the plaintiff’s attorney received an answer by mail, hut the postage was not paid, and he immediately returned it. On the '21st of March plaintiff’s attorney entered up judgment for want of an answer. The defendant now moves to set aside the judgment as irregular and void.
1Opinion of the Court
Barculo, Justice.
The most obvious objection to this mo-tion is presented by the lapse of three years since the proceedings complained of. Considered as an irregularity, it is clear, that the defendant could not obtain relief by motion after the judgment had been entered one year. (2 R. S., and Code § 174;) Whitney agt. Kenyon, (7 How. Pr. Rep., 458;) Park agt. Atwell, (5 How. Pr. Rep. 381.)
The defendant’s counsel endeavors to obviate this by claiming that the judgment is void, on the ground that the court never obtained jurisdiction. In this, however, he is mistaken. For if we assume against…
2Cases cited2 opinions
- Park v. Church & AtwellNew York Supreme Court · 1851
- Whitney v. KenyonNew York Supreme Court · 1853
3Cited by1 opinion
- Macomber v. Mayor of New YorkThe Superior Court of New York City · 1860