Sweet v. Coon

15 Johns. 86

• Court: New York Supreme Court
• Decided: January 15, 1818
• Status: Published

Opinion

Per Curiam.

It is to he inferred from the return, that Sweet, one of the defendants, when he did appeal-, claimed the right of defending the cause, on its merits, but was precluded by the justice, on the ground that he had been called, and his default entered. In this the justice erred. He had barely commenced the trial; had not yet finished noting down the plaintiff’s declaration, and could not be said to have entered on the merits of the cause. The act (1 N. R. L. 388.) only directs, that if the defendant does not appear to a summons personally served on him, at the time and place appointed in such summons, the justice shall then, or at such other reasonable time as he may appoint, not exceeding six days, proceed to hoar the proofs and allegations of the parties. The act does not speak of any default being entered which can preclude the defendant from making a defence. The defendant was, then, in season to answer the declaration, and before any testimony was given 5 and if the plaintiff, after hearing the defendants’ plea, had wanted an adjournment, or a jury, it would not have been too late for him to have claimed it; nor could he in any way have been prejudiced by the defendants not appearing before. The judgment must, therefore, be reversed on this ground, without noticing the defect of proof in making out any cause of action against the defendants.

Judgment reversed.