Dean v. Cannon
New York Court of Common Pleas
Appeal by defendant from a judgment rendered in the First District Court. The plaintiff brought action against the defendant as indorser of a bill of exchange. On the return -day mentioned in the summons, the defendant did not appear, and plaintiff took judgment by default for amount claimed, interest and costs.
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Appeal by defendant from a judgment rendered in the First District Court. The plaintiff brought action against the defendant as indorser of a bill of exchange. On the return -day mentioned in the summons, the defendant did not appear, and plaintiff took judgment by default for amount claimed, interest and costs. The defendant appealed to the Court of Common Pleas; the judgment was reversed, and it was ordered that “ a new trial be had before the Justice of the First Judicial District Court, on the 19th day of February, 1859, at 10 o’clock, a.m.” In pursuance of such order, the cause came on…
1Opinion of the CourtBrady, J.
The judgment must be reversed. The plaintiff was a non-resident, and did not file security for costs. Hallenbeck v. Gillies, 7 Abb. Pr. Rep. 421.
The Justice declined to dismiss the action on the ground that the cause was sent hack by this Court for a new trial, seeming to regard it as a duty to dispose of the case on its merits for that reason. A new trial was ordered by this Court, because the defendant failed to appear, and alleged a defence on the merits. The order for a new trial imposed no duty upon the Court below, inconsistent with or restrictive of any of its powers. The case was to…
2Cited by3 opinions
- Glass v. PlaceNew York Court of Common Pleas · 1874
- Brooks v. DinsmoreNew York Court of Common Pleas · 1889
- Titus Sheard Co. v. MorrisseyAppellate Terms of the Supreme Court of New York · 1898