Hitchman v. Baxter

New York Supreme Court

Hitchman v. Baxter

41 N.Y. Sup. Ct. 271

DecidedNovember 15, 1884

StatusPublished

This text of 41 N.Y. Sup. Ct. 271 (Hitchman v. Baxter) 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

Hitchman v. Baxter, 41 N.Y. Sup. Ct. 271 (N.Y. Super. Ct. 1884).

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Opinion

By the Court

We are of the opinion that the indorsement on the summons was fatally defective. The indorsement was “for a penalty imposed under and according to the provisions of section 19, chapter 16, title 1, part 1 of the several statutes relating to overseers of highways and highway labor.” If that was intended to refer to the Revised Statutes, then section 19 has nothing to do with penalties. But the language is not enough to designate the Revised Statutes. The reference to “ the several statutes ” is utterly indefinite. The plaintiff has no right to set a conundrum for the defendant to guess. He must, give reasonable notice, such as would ordinarily be understood, and' such as would enable the defendant to discover on what statute he was sued. It may not have been necessary to specify the section, under Code section 1897, if there was only one penalty. But the plaintiff chose to specify a-section which could not be correct and his notice was practi.cally of no use.

[272]*272We are satisfied that the indorsement was not sufficiently definite, and without examining the other points we affirm the judgment of the County Court, with costs.

Present — Learned, P. J., Landon and Fish, JJ.

Judgment of County Court affirmed, with costs.

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By the Court

We are of the opinion that the indorsement on the summons was fatally defective. The indorsement was “for a penalty imposed under and according to the provisions of section 19, chapter 16, title 1, part 1 of the several statutes relating to overseers of highways and highway labor.” If that was intended to refer to the Revised Statutes, then section 19 has nothing to do with penalties. But the language is not enough to designate the Revised Statutes. The reference to “ the several statutes ” is utterly indefinite. The plaintiff has no right to set a conundrum for the defendant to guess. He must, give reasonable notice, such as would ordinarily be understood, and' such as would enable the defendant to discover on what statute he was sued. It may not have been necessary to specify the section, under Code section 1897, if there was only one penalty. But the plaintiff chose to specify a-section which could not be correct and his notice was practi.cally of no use.

[272]*272We are satisfied that the indorsement was not sufficiently definite, and without examining the other points we affirm the judgment of the County Court, with costs.

Present — Learned, P. J., Landon and Fish, JJ.

Judgment of County Court affirmed, with costs.

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Bluebook (online)

41 N.Y. Sup. Ct. 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hitchman-v-baxter-nysupct-1884.