Jackson ex dem. Beaver v. Stiles

1 Cow. 222

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia.

Although the service was not, perhaps, technical-» correc^ we deny the motion, under the circumstances of this case. As the tenant was not deceived or mislead,

(a) we consider it equivalent to a technical service. The whole is a mere question of regularity, as it appears upon the papers. The plain tiff is bound, at his peril, to serve the declaration upon the tenant in possession.(b) There must be an affidavit of this filed, to warrant a judgment by default against the casual ejector. • That must have been done in this case. The tenant’s affidavit, that he was not in possession, cannot be considered as an affidavit of merits. It may, therefore, be ■contradicted, and the balance of testimony is that he was in possession. But though we deny the motion^ we direct it to hemade a part of the rule, that, on filing an affidavit of merits within thirty days, the default be set aside, and the tenant let in to defend, on payment of the costs.

Rule accordingly, (c)

Vid. Ryers v. Hillyer, 1 Caines, 112. Parkman v. Sherman, id. 344, Batten v. Harrison, 3 B. & P. 1.

5) Vid. Adams on Ej. 209-10. Tidd, 6th ed. 509. 1 Ch. Rep. 118. n. (a) aoc.

This decision, accords with the latest English decisions on this subject, which determine, that if the affidavit of service only state that the notice was read, this .will not be sufficient, unless the tenant afterwards acknowledge that he understands the meaning and intention of the service; but with such acknowledgment the service will be good, without any statement of the reading or explanation of the notice or service. (Doe, d. Whitfield, v. Roe, K. B. T. T. 1815, M. S. Same, d. Quintin, v. Roe, K. B. T. T. 1816, M. S. Adams, 217.)