Ferriss v. Merrill

New York Supreme Court

Ferriss v. Merrill

3 How. Pr. 20

DecidedJune 15, 1847

StatusPublished

This text of 3 How. Pr. 20 (Ferriss v. Merrill) 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

Ferriss v. Merrill, 3 How. Pr. 20 (N.Y. Super. Ct. 1847).

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Opinion

Beardsley, Justice

The ninth rule of this court does not touch the question to be decided in this case. That authorises a service of papers through the post office where the residence of the party is not endorsed, as the rule directs; the papers to be served, being in such case directed according to the best information which can be obtained, concerning the residence of the party on whom they are to be served. Here the Defendant’s attorney believed, as he states, that the Plaintiff’s attorney resided in the city of Hew York. So far he was correct; the error was as to the name of the attorney, not his residence. The rule has nothing to do with any doubt which may exist as to a name.

Then as to this name of the Plaintiff’s attorney. It is written in and on the declaration four times: three of these might very honestly be read Bebb—the other I should read Betts. Here was room for doubt and misapprehension. The Defendant’s attorney says he was misled, and I see no room to question his statement. Still, I cannot say he used all the diligence to discover what the name was, which the case required. He thought it was Bébl, but he had his doubts as to that. The attorney, he believed, lived in Hew York; and believing that, and doubting what the name was, it seems to me a little remarkable he did not go to the clerk’s office where the true name could unquestionably have been discovered in a moment. I do not think there is any room to impute bad faith in this respect, yet there was not as much diligence •as such a case would seem to have called for. The Plaintiff was strictly regular, although the name of bis attorney is written very equivocally. The circuit judge allowed the judgment, &c. to stand, but gave the Defendant leave to plead, &c. I see no sufficient ground to disturb what the circuit judge has done, and the appeal from his order must be overruled and the order affirmed. But let the costs abide the event.

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Beardsley, Justice

The ninth rule of this court does not touch the question to be decided in this case. That authorises a service of papers through the post office where the residence of the party is not endorsed, as the rule directs; the papers to be served, being in such case directed according to the best information which can be obtained, concerning the residence of the party on whom they are to be served. Here the Defendant’s attorney believed, as he states, that the Plaintiff’s attorney resided in the city of Hew York. So far he was correct; the error was as to the name of the attorney, not his residence. The rule has nothing to do with any doubt which may exist as to a name.

Then as to this name of the Plaintiff’s attorney. It is written in and on the declaration four times: three of these might very honestly be read Bebb—the other I should read Betts. Here was room for doubt and misapprehension. The Defendant’s attorney says he was misled, and I see no room to question his statement. Still, I cannot say he used all the diligence to discover what the name was, which the case required. He thought it was Bébl, but he had his doubts as to that. The attorney, he believed, lived in Hew York; and believing that, and doubting what the name was, it seems to me a little remarkable he did not go to the clerk’s office where the true name could unquestionably have been discovered in a moment. I do not think there is any room to impute bad faith in this respect, yet there was not as much diligence •as such a case would seem to have called for. The Plaintiff was strictly regular, although the name of bis attorney is written very equivocally. The circuit judge allowed the judgment, &c. to stand, but gave the Defendant leave to plead, &c. I see no sufficient ground to disturb what the circuit judge has done, and the appeal from his order must be overruled and the order affirmed. But let the costs abide the event.

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Bluebook (online)

3 How. Pr. 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferriss-v-merrill-nysupct-1847.