Towle v. Covert

New York Court of Common Pleas

Towle v. Covert

15 Abb. Pr. 193, 49 How. Pr. 120

DecidedJanuary 15, 1874

StatusPublished

This text of 15 Abb. Pr. 193 (Towle v. Covert) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Towle v. Covert, 15 Abb. Pr. 193, 49 How. Pr. 120 (N.Y. Super. Ct. 1874).

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Opinion

By the Court.

*

The action was upon contract for the recovery of money only. Prior to the act, chap. 239, Laws of 1873, this court would have jurisdiction of the action if the defendant resided in the city of New York, or was served with the summons therein (Code, §33). The action having been brought after the passage of the act aforesaid, the court, on proof'that the defendant was not a resident of this State, and could not be found therein, but had property therein liable to attachment, made an order for tho publication of the summons and service by mail thereof, and granted a warrant of attachment against de fendant’s property. On failure of defendant to an[194]*194swer, and on due proof of service by publication of summons, and of levy under the attachment issued, judgment was entered against the defendant.

The judgment was irregular, this court not having acquired jurisdiction (Landers v. Staten Island R. R. Co., 14 Abb. Pr. N. S., 346). The order of publication, the judgment and all proceedings thereunder, and the levy under the attachment must be set aside.

The warrant of attachment will not be set aside, because it may be issued before the summons is served (Woodward v. Stearns, 10 Abb. Pr. N. S., 395); but defendant may move to vacate it on further papers as he shall be advised.

Present, Daly, Ch. J., and Robinson and J. P. Daly, JJ.

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By the Court.

*

The action was upon contract for the recovery of money only. Prior to the act, chap. 239, Laws of 1873, this court would have jurisdiction of the action if the defendant resided in the city of New York, or was served with the summons therein (Code, §33). The action having been brought after the passage of the act aforesaid, the court, on proof'that the defendant was not a resident of this State, and could not be found therein, but had property therein liable to attachment, made an order for tho publication of the summons and service by mail thereof, and granted a warrant of attachment against de fendant’s property. On failure of defendant to an[194]*194swer, and on due proof of service by publication of summons, and of levy under the attachment issued, judgment was entered against the defendant.

The judgment was irregular, this court not having acquired jurisdiction (Landers v. Staten Island R. R. Co., 14 Abb. Pr. N. S., 346). The order of publication, the judgment and all proceedings thereunder, and the levy under the attachment must be set aside.

The warrant of attachment will not be set aside, because it may be issued before the summons is served (Woodward v. Stearns, 10 Abb. Pr. N. S., 395); but defendant may move to vacate it on further papers as he shall be advised.

Present, Daly, Ch. J., and Robinson and J. P. Daly, JJ.

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Bluebook (online)

15 Abb. Pr. 193, 49 How. Pr. 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/towle-v-covert-nyctcompl-1874.