Paine v. McCarthy

8 N.Y. Sup. Ct. 78

• Court: New York Supreme Court
• Decided: March 15, 1874
• Status: Published

Opinion

Donohue, J.:

In this case, on the seventeenth day of June, the defendant was served with a summons, neither accompanied by, nor required to be accompanied by a complaint.

The defendant having served no appearance or answer before the eighth of July, the plaintiff entered judgment.

The defendant now claims that this judgment should be set aside as irregular, on the ground that the plaintiff served a complaint at defendant’s office on the nineteenth of June, and the defendant’s time to appear and answer did not expire until the ninth of July, on which day he served an answer.

The judge below denied defendant’s motion, but gave him liberty, on certain conditions, to come in and defend. We think the order correct. Section 130 expressly shows that, to entitle the defendant to a copy of the complaint, he should appear within the twenty days after service of the summons, and that the complaint need not accompany the summons.

This construction has been given by the court.

* We think the defendant has no cause of complaint against the order, as, in strictness, the plaintiff was correct, and defendant’s motion might have been denied.

The order should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.

Van Pelt v. Boyer, 7 Howard, 325.