Lent v. Moyer

New York County Courts

Lent v. Moyer

45 Misc. 139, 91 N.Y.S. 975

DecidedOctober 15, 1904

StatusPublished

This text of 45 Misc. 139 (Lent v. Moyer) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lent v. Moyer, 45 Misc. 139, 91 N.Y.S. 975 (N.Y. Super. Ct. 1904).

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Opinion

Devendorf, J.

This action arising on contract for money •only was brought in justice’s court. A written complaint felly alleging the facts constituting the cause of action and [140]*140specifying the amount due from defendant to plaintiffs was attached to the summons and served therewith personally upon defendant as provided for by chapter 414 of the Laws of 1881, as amended by chapter 472 of the Paws of 1889.

The summons and complaint were duly filed with the justice. At the return of the summons the defendant appeared in person but no appearance was entered on the part of plaintiffs; after waiting an hour, the defendant asked to have the complaint dismissed and his request was granted, and judgment of nonsuit entered with costs.

I think the justice made a mistake in dismissing the action. The plaintiffs had done all that the statute required them to do; there was no defect in.the summons, complaint, verification or proof of service; at the return of the summons, the defendant appeared but failed to answer the complaint, hence he shall be deemed to have admitted the allegations of the complaint as true, and the summons and complaint having been filed, it then became the duty of the court to enter judgment for the plaintiffs and against the defendant for the amount demanded in the complaint without further proof. The action was dismissed by the justice as he states in pursuance of the provisions of subdivision 2 of section 3013 of the Code of Civil Procedure which provides that judgment of nonsuit must be rendered against the plaintiff if he fails to appear within one hour after the summons is returnable. I do not think that the provisions of that section apply where the summons is accompanied by a verified complaint, and the defendant fails to file a verified answer as prescribed by said statute. An appearance on the part-of the plaintiffs would not have changed the situation unless the defendant filed an answer, and had the defendant done so in this case, he then perhaps would ‘have been in a position to have properly asked for a judgment of nonsuit if the plaintiffs still failed to appear.

I have come to the conclusion that the judgment appealed from herein should be reversed, and judgment is ordered accordingly reversing the same, with costs.

Judgment reversed, with costs.

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Devendorf, J.

This action arising on contract for money •only was brought in justice’s court. A written complaint felly alleging the facts constituting the cause of action and [140]*140specifying the amount due from defendant to plaintiffs was attached to the summons and served therewith personally upon defendant as provided for by chapter 414 of the Laws of 1881, as amended by chapter 472 of the Paws of 1889.

The summons and complaint were duly filed with the justice. At the return of the summons the defendant appeared in person but no appearance was entered on the part of plaintiffs; after waiting an hour, the defendant asked to have the complaint dismissed and his request was granted, and judgment of nonsuit entered with costs.

I think the justice made a mistake in dismissing the action. The plaintiffs had done all that the statute required them to do; there was no defect in.the summons, complaint, verification or proof of service; at the return of the summons, the defendant appeared but failed to answer the complaint, hence he shall be deemed to have admitted the allegations of the complaint as true, and the summons and complaint having been filed, it then became the duty of the court to enter judgment for the plaintiffs and against the defendant for the amount demanded in the complaint without further proof. The action was dismissed by the justice as he states in pursuance of the provisions of subdivision 2 of section 3013 of the Code of Civil Procedure which provides that judgment of nonsuit must be rendered against the plaintiff if he fails to appear within one hour after the summons is returnable. I do not think that the provisions of that section apply where the summons is accompanied by a verified complaint, and the defendant fails to file a verified answer as prescribed by said statute. An appearance on the part-of the plaintiffs would not have changed the situation unless the defendant filed an answer, and had the defendant done so in this case, he then perhaps would ‘have been in a position to have properly asked for a judgment of nonsuit if the plaintiffs still failed to appear.

I have come to the conclusion that the judgment appealed from herein should be reversed, and judgment is ordered accordingly reversing the same, with costs.

Judgment reversed, with costs.

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Bluebook (online)

45 Misc. 139, 91 N.Y.S. 975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lent-v-moyer-nycountyct-1904.