Ferris v. Soley

23 How. Pr. 422

• Court: New York Supreme Court
• Decided: September 15, 1862
• Status: Published

Opinion

Barnard, Justice.

The defendant, under the demand served by him, was entitled to -have a copy of the complaint served on him, unless a waiver in writing is shown. The judgment, consequently, is irregular, and must be set aside. This the defendant is entitled to as a matter of right. The dismissal of the complaint, however, is a matter resting in the discretion of the court, and if a reasonable excuse .for not having served it is shown, time within which to serve it is always granted. The plaintiff has shown a reasonable excuse in this case.

The motion to discharge from arrest, by reason of the non-service of the complaint, falls with the extension of the time to make the service. The ground on which the discharge is granted in such cases is that of laches in plaintiff. The excuse of the laches for not serving the complaint should stand effectual as a bar to all motions based on that laches.

As neither party has wholly succeeded on this motion, no costs are given.

Motion granted, so far as to set aside the judgment; the rest of the motion denied, with leave given to plaintiff to serve the complaint within three days after service on him of this order.

The judgment being set aside, the defendant may move on the merits to set aside the order of arrest.