Mead v. Hartwell

New York Court of Common Pleas

Mead v. Hartwell

31 N.Y.S. 674, 10 Misc. 662, 64 N.Y. St. Rep. 300, 24 N.Y. Civ. Proc. R. 217

DecidedJanuary 7, 1895

StatusPublished

This text of 31 N.Y.S. 674 (Mead v. Hartwell) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mead v. Hartwell, 31 N.Y.S. 674, 10 Misc. 662, 64 N.Y. St. Rep. 300, 24 N.Y. Civ. Proc. R. 217 (N.Y. Super. Ct. 1895).

Pincite

Opinion

PRYOR, J.

The appeal is from an order of the general term of the city court affirming an order at special term denying a motion to vacate an order shortening the time to answer. On due proof of the nonresidence of the plaintiffs, an order was entered directing “that the time in the summons within which the defendants are required to answer shall be, and the same is hereby, shortened to not less than two days after service of the summons.” Accordingly, a summons issued requiring the defendants to answer “within two days” after service. Regularly, the summons must require an answer within six days; but, in case the plaintiff or defendant resides without the city of New York, a justice of the court may by order direct “that the defendant be summoned to answer within a shorter time, specified therein, not less than two days after the service of the summons, whereupon the summons must correspond with the order.” Code Civ. Proc. § 3165. The provision, being for acquisition of jurisdiction, must be strictly complied with. Manifestly the order fails to conform to the mandate of the Code, in that it omits to specify the exact time, less than six days, within which the defendants were to answer. The requirement of the order is merely that the summons shall cite the defendants to answer within a period “not less than two days”; but whether they are to answer on the 3d, 4th, 5th, or 6th day after sendee of summons is not specified in the order. The order leaves with the plaintiffs the privilege of designating the time within which the defendants shall answer, with the restriction only that they be summoned to answer within “not less than two days.” Accordingly, the plaintiffs summoned the defendants to answer “within two days.” But the Code prescribes that the court shall specify the shorter time (than six days) within which the defendants should be summoned to answer. The order was the only authority for the issuance of the summons; and, as the order failed to define the period within which the defendants were to answer, the conclusion is that the plaintiffs were powerless to supply the omission. Clearly, the summons does not “correspond with the order,” for the one does, and the other does not, limit the time for answering. It is not to be argued that the objection urged by the appellants is merely technical. Legal procedure is a system of technicalities, the observance of which, especially upon points of jurisdiction, is indispensable to the orderly administration of justice. Order reversed, with costs. All concur.

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PRYOR, J.

The appeal is from an order of the general term of the city court affirming an order at special term denying a motion to vacate an order shortening the time to answer. On due proof of the nonresidence of the plaintiffs, an order was entered directing “that the time in the summons within which the defendants are required to answer shall be, and the same is hereby, shortened to not less than two days after service of the summons.” Accordingly, a summons issued requiring the defendants to answer “within two days” after service. Regularly, the summons must require an answer within six days; but, in case the plaintiff or defendant resides without the city of New York, a justice of the court may by order direct “that the defendant be summoned to answer within a shorter time, specified therein, not less than two days after the service of the summons, whereupon the summons must correspond with the order.” Code Civ. Proc. § 3165. The provision, being for acquisition of jurisdiction, must be strictly complied with. Manifestly the order fails to conform to the mandate of the Code, in that it omits to specify the exact time, less than six days, within which the defendants were to answer. The requirement of the order is merely that the summons shall cite the defendants to answer within a period “not less than two days”; but whether they are to answer on the 3d, 4th, 5th, or 6th day after sendee of summons is not specified in the order. The order leaves with the plaintiffs the privilege of designating the time within which the defendants shall answer, with the restriction only that they be summoned to answer within “not less than two days.” Accordingly, the plaintiffs summoned the defendants to answer “within two days.” But the Code prescribes that the court shall specify the shorter time (than six days) within which the defendants should be summoned to answer. The order was the only authority for the issuance of the summons; and, as the order failed to define the period within which the defendants were to answer, the conclusion is that the plaintiffs were powerless to supply the omission. Clearly, the summons does not “correspond with the order,” for the one does, and the other does not, limit the time for answering. It is not to be argued that the objection urged by the appellants is merely technical. Legal procedure is a system of technicalities, the observance of which, especially upon points of jurisdiction, is indispensable to the orderly administration of justice. Order reversed, with costs. All concur.

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Bluebook (online)

31 N.Y.S. 674, 10 Misc. 662, 64 N.Y. St. Rep. 300, 24 N.Y. Civ. Proc. R. 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mead-v-hartwell-nyctcompl-1895.