Allerton v. Poole

Appellate Terms of the Supreme Court of New York

Allerton v. Poole

123 N.Y.S. 803

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 24, 1910

StatusPublished

This text of 123 N.Y.S. 803 (Allerton v. Poole) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allerton v. Poole, 123 N.Y.S. 803 (N.Y. Ct. App. 1910).

Pincite

Opinion

PER CURIAM.

The defendant appeals from a judgment taken against him in favor of the plaintiff, and hands up affidavits, copies of which have been served, showing that no service of the summons was ever made upon him and that he has never appeared in the action. The process server practically admits that he served the.wrong person, and plaintiff asks that the appeal be dismissed, upon the ground that his attorney has offered to vacate the judgment without costs to either party. Such an offer is not a ground for dismissal. If no summons was ever served, and the defendant did nothing to confer jurisdiction upon the court below, the judgment was wholly unauthorized, and must be reversed. By a recourse to the provisions of section 325 of the Municipal Court act (Laws 1902, c. 580) the respondent could have reduced the costs upon reversal to the sum of $5.

Judgment reversed, with costs, and complaint dismissed, with costs.

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PER CURIAM.

The defendant appeals from a judgment taken against him in favor of the plaintiff, and hands up affidavits, copies of which have been served, showing that no service of the summons was ever made upon him and that he has never appeared in the action. The process server practically admits that he served the.wrong person, and plaintiff asks that the appeal be dismissed, upon the ground that his attorney has offered to vacate the judgment without costs to either party. Such an offer is not a ground for dismissal. If no summons was ever served, and the defendant did nothing to confer jurisdiction upon the court below, the judgment was wholly unauthorized, and must be reversed. By a recourse to the provisions of section 325 of the Municipal Court act (Laws 1902, c. 580) the respondent could have reduced the costs upon reversal to the sum of $5.

Judgment reversed, with costs, and complaint dismissed, with costs.

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Bluebook (online)

123 N.Y.S. 803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allerton-v-poole-nyappterm-1910.