Macomb v. Smith

New York Supreme Court

Macomb v. Smith

1 Wend. 67

DecidedAugust 15, 1828

StatusPublished

This text of 1 Wend. 67 (Macomb v. Smith) 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

Macomb v. Smith, 1 Wend. 67 (N.Y. Super. Ct. 1828).

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Opinion

By the Court,

Sutherland, J.

The defendant was not bound to look to the declaration on file. Parties must be governed by the papers served, and not by those on file. Not receiving notice of a rule to amend, and none being in fact entered, the defendant was not obliged to take notice of the amended declaration served on him. The proceeding of the defendant, therefore, in entering the plaintiff’s default, was regular, but it is set aside on payment of costs; the declaration last served to be considered as an amended declaration, and the defendant to plead in ten days after notice.

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By the Court,

Sutherland, J.

The defendant was not bound to look to the declaration on file. Parties must be governed by the papers served, and not by those on file. Not receiving notice of a rule to amend, and none being in fact entered, the defendant was not obliged to take notice of the amended declaration served on him. The proceeding of the defendant, therefore, in entering the plaintiff’s default, was regular, but it is set aside on payment of costs; the declaration last served to be considered as an amended declaration, and the defendant to plead in ten days after notice.

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Bluebook (online)

1 Wend. 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macomb-v-smith-nysupct-1828.