Bascom v. . Smith

31 N.Y. 595

• Court: New York Court of Appeals
• Decided: June 5, 1864
• Status: Published

Opinion

Per Curiam.

As against third parties, the affidavit in this case is sufficient to sustain the jurisdiction of the justice. The non-residence of the defendants, though informally, is sufficiently alleged. The justice was sufficiently satisfied of the facts to issue his warrant, and third parties cannot attack it collaterally.

The objection that the. bond was not legally approved by the justice, is not well taken. It certainly was taken by him as sufficient for the.0purpose for which it was given, and, as against third parties, it is sufficient, though he does not certify expressly that it was executed in his presence. The return is also sufficient as against these parties.

The statute requires a summons to be personally served, by reading, &c., and that the return shall state the manner of service. Yet it has been settled that a return merely stating " personally served,” is sufficient. (2 Cow., 418; 20 N. Y., 229.)

The return in question is a substantial compliance with the statute. (20 Wend., 145; 11 Barb., 530; 15 id., 546.) Any other construction would render such proceedings extremely hazardous, and more complicated than the practice in the higher courts. (1 Kern., 340, 341; 20 N. Y., 298.)

The original defendant has acquiesced in the judgment, by not appealing therefrom. On appeal, a more strict construction might be required, as against him; but third parties cannot question the proceedings collaterally, unless there is a clear want of jurisdiction.

The objection that the original papers coidd not be proved by the certificate of the justice, is one which might be obviated on a second trial; and for that reason, the decision below should not be sustained upon such ground alone.

Judgment of the General Term reversed, and new trial ordered.