Smith v. Gourand

New York Supreme Court

Smith v. Gourand

27 N.Y.S. 717, 83 N.Y. Sup. Ct. 343, 59 N.Y. St. Rep. 91, 76 Hun 343

DecidedFebruary 16, 1894

StatusPublished

This text of 27 N.Y.S. 717 (Smith v. Gourand) 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

Smith v. Gourand, 27 N.Y.S. 717, 83 N.Y. Sup. Ct. 343, 59 N.Y. St. Rep. 91, 76 Hun 343 (N.Y. Super. Ct. 1894).

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Opinion

PER CURIAM.

The complaint was served after the time for such service had expired, and the plaintiff therefore, as a matter of right, could not have insisted upon the defendant accepting the same, and the form of his motion, instead of being to compel defendant to accept, should have been to open the default. In his notice of motion, however, he asked for such other relief as the court might grant; and, sufficient facts appearing to warrant the opening of the default, and the granting of the motion for leave to serve the complaint, it is to be assumed that this was the relief which the court intended to grant. We think, therefore, while the form of the notice of motion, and the order entered upon granting the same, may not be strictly correct, because requiring the defendant to accept the complaint, instead of .opening the default, and granting permission to serve the complaint, that the proper disposition to be made of the appeal would be to affirm the order, without costs.

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PER CURIAM.

The complaint was served after the time for such service had expired, and the plaintiff therefore, as a matter of right, could not have insisted upon the defendant accepting the same, and the form of his motion, instead of being to compel defendant to accept, should have been to open the default. In his notice of motion, however, he asked for such other relief as the court might grant; and, sufficient facts appearing to warrant the opening of the default, and the granting of the motion for leave to serve the complaint, it is to be assumed that this was the relief which the court intended to grant. We think, therefore, while the form of the notice of motion, and the order entered upon granting the same, may not be strictly correct, because requiring the defendant to accept the complaint, instead of .opening the default, and granting permission to serve the complaint, that the proper disposition to be made of the appeal would be to affirm the order, without costs.

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Bluebook (online)

27 N.Y.S. 717, 83 N.Y. Sup. Ct. 343, 59 N.Y. St. Rep. 91, 76 Hun 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-gourand-nysupct-1894.