Salter v. Malcolm

The Superior Court of New York City

Salter v. Malcolm

1 Duer 596

CourtThe Superior Court of New York City

DecidedOctober 8, 1852

StatusPublished

This text of 1 Duer 596 (Salter v. Malcolm) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Salter v. Malcolm, 1 Duer 596 (N.Y. Super. Ct. 1852).

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Opinion

When a'Eeferee reports that nothing is due to the plaintiff, and it appears from his report that the case had not been heard before him, but that his decision was founded upon the default in appearance of the plaintiff and his. counsel on the day appointed for a hearing,—the proper judgment to be entered is a dismissal of the complaint, not an absolute judgment, as upon a verdict. The judgment ought no more to be an absolute bar in such a case, than in that of a nonsuit upon a trial.

So held by Dues, J., to whom the question was referred in the above case; Campbell and Bosworth, Justices, concurring.

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When a'Eeferee reports that nothing is due to the plaintiff, and it appears from his report that the case had not been heard before him, but that his decision was founded upon the default in appearance of the plaintiff and his. counsel on the day appointed for a hearing,—the proper judgment to be entered is a dismissal of the complaint, not an absolute judgment, as upon a verdict. The judgment ought no more to be an absolute bar in such a case, than in that of a nonsuit upon a trial.

So held by Dues, J., to whom the question was referred in the above case; Campbell and Bosworth, Justices, concurring.

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Bluebook (online)

1 Duer 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salter-v-malcolm-nysuperctnyc-1852.