S. Perceval, Inc. v. Ernest H. Fleischmann Co.

Appellate Terms of the Supreme Court of New York

S. Perceval, Inc. v. Ernest H. Fleischmann Co.

78 Misc. 252, 138 N.Y.S. 139

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 1912

StatusPublished

This text of 78 Misc. 252 (S. Perceval, Inc. v. Ernest H. Fleischmann Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

S. Perceval, Inc. v. Ernest H. Fleischmann Co., 78 Misc. 252, 138 N.Y.S. 139 (N.Y. Ct. App. 1912).

Pincite

Opinion

Per Curiam.

The defendant appeared upon the return day of the summons and was given until the day following to file an answer. On that day the defendant appeared and its attorney offered an answer, verified by the vice-president of the defendant, which put in issue the allegations of the complaint but which it was claimed by the plaintiff was not subscribed by the defendant’s attorney prior to its being verified by the defendant’s officer. Upon this ground the court refused to permit the defendant to file its answer and gave a judgment in favor of the plaintiff from which judgment the defendant appeals.

The Municipal Court Act does not require that a pleading shall be subscribed by an attorney for a party and section 520 of the Code of Civil Procedure has no application to the Municipal Court. See Code Civ. Pro., § 3347, subd. [253]*2534. It was, therefore, error to refuse to-file the offered answer. The judgment entered against the defendant was not one taken by default; the defendant appeared and was only prevented from trying its case by reason of the refusal of the justice to permit the filing of the answer.

Judgment reversed and a new trial ordered, with costs to the appellant.

Present: Seabury, Guy and Bijur, JJ.

Judgment reversed.

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Per Curiam.

The defendant appeared upon the return day of the summons and was given until the day following to file an answer. On that day the defendant appeared and its attorney offered an answer, verified by the vice-president of the defendant, which put in issue the allegations of the complaint but which it was claimed by the plaintiff was not subscribed by the defendant’s attorney prior to its being verified by the defendant’s officer. Upon this ground the court refused to permit the defendant to file its answer and gave a judgment in favor of the plaintiff from which judgment the defendant appeals.

The Municipal Court Act does not require that a pleading shall be subscribed by an attorney for a party and section 520 of the Code of Civil Procedure has no application to the Municipal Court. See Code Civ. Pro., § 3347, subd. [253]*2534. It was, therefore, error to refuse to-file the offered answer. The judgment entered against the defendant was not one taken by default; the defendant appeared and was only prevented from trying its case by reason of the refusal of the justice to permit the filing of the answer.

Judgment reversed and a new trial ordered, with costs to the appellant.

Present: Seabury, Guy and Bijur, JJ.

Judgment reversed.

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Bluebook (online)

78 Misc. 252, 138 N.Y.S. 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/s-perceval-inc-v-ernest-h-fleischmann-co-nyappterm-1912.