Abeel v. Conhyser

New York Supreme Court

Abeel v. Conhyser

42 How. Pr. 252

DecidedJanuary 15, 1872

StatusPublished

This text of 42 How. Pr. 252 (Abeel v. Conhyser) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abeel v. Conhyser, 42 How. Pr. 252 (N.Y. Super. Ct. 1872).

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Opinion

Hardin, J.

It is clear, that only such persons as are named in the summons and pleadings in an action can be deemed “parties” to the action (16 Abb., 1; 16 How., 144).

The only information furnished to the sheriff as to who were parties to this action was contained in the summons and complaint, and it was his duty to be governed by the papers placed in his hands, and it was his duty to make service thereof upon the persons named in the process and papers delivered to him for service (4 How., 97; 8 Wend., 474; 9 John., 117; 32 Barb., 279, opinion of Allen, J.) The service of the summons and complaint in this action upon John H. Conhyser, would not have authorized the plaintiff to take a judgment against him which would have been binding upon him, nor would his arrest in execution be justified by the proceedings in this action in the absence of any appearance or voluntary act by him assenting to their validity (6 Cow., 455; 7 Cow., 332; 4 Wend., 555 ; 28 Barb., 630), nor could an order have been made ex parte changing the Christian name which would have rendered a judgment by default good against him (32 Barb., 277).

[254]*254The conclusions are, therefore, reached upon the undisputed facts appearing on this motion.

1. That John H. Conhyser was not a. party to this action.

2. That there was no intention on the part of the plaintiff or his attorney to make him a party to the action.

3. That it was not necessary for him to appear and answer in order to save his rights or prevent his being affected by any judgment the plaintiff could take without notice to him of a motion to amend the summons and proceedings.

4; That he was notified before he retained his attorney, that he. was not a party to the action, and that the plaintiff did not claim to hold him as a party.

5. That the attorney refused on notice and information of the facts, to withdraw his appearance and answer, and, therefore, rendered this motion proper and necessary to get rid of them.

And therefore, this motion should be granted, and the appearance and answer of John H. Conhyser stricken out, with $10 costs to be paid by him. The motion is granted, and an order may be entered accordingly. '

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Hardin, J.

It is clear, that only such persons as are named in the summons and pleadings in an action can be deemed “parties” to the action (16 Abb., 1; 16 How., 144).

The only information furnished to the sheriff as to who were parties to this action was contained in the summons and complaint, and it was his duty to be governed by the papers placed in his hands, and it was his duty to make service thereof upon the persons named in the process and papers delivered to him for service (4 How., 97; 8 Wend., 474; 9 John., 117; 32 Barb., 279, opinion of Allen, J.) The service of the summons and complaint in this action upon John H. Conhyser, would not have authorized the plaintiff to take a judgment against him which would have been binding upon him, nor would his arrest in execution be justified by the proceedings in this action in the absence of any appearance or voluntary act by him assenting to their validity (6 Cow., 455; 7 Cow., 332; 4 Wend., 555 ; 28 Barb., 630), nor could an order have been made ex parte changing the Christian name which would have rendered a judgment by default good against him (32 Barb., 277).

[254]*254The conclusions are, therefore, reached upon the undisputed facts appearing on this motion.

1. That John H. Conhyser was not a. party to this action.

2. That there was no intention on the part of the plaintiff or his attorney to make him a party to the action.

3. That it was not necessary for him to appear and answer in order to save his rights or prevent his being affected by any judgment the plaintiff could take without notice to him of a motion to amend the summons and proceedings.

4; That he was notified before he retained his attorney, that he. was not a party to the action, and that the plaintiff did not claim to hold him as a party.

5. That the attorney refused on notice and information of the facts, to withdraw his appearance and answer, and, therefore, rendered this motion proper and necessary to get rid of them.

And therefore, this motion should be granted, and the appearance and answer of John H. Conhyser stricken out, with $10 costs to be paid by him. The motion is granted, and an order may be entered accordingly. '

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42 How. Pr. 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abeel-v-conhyser-nysupct-1872.

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