Walsh v. Kursheedt

8 Abb. Pr. 418

• Court: New York Court of Common Pleas
• Decided: January 15, 1859
• Status: Published

Opinion

Brady, J.

The copy of the complaint need not be served with the summons; but if the defendant appears within the twenty days allowed by the Code, and demands in writing a copy of the complaint, specifying a placé within the State where it may he served, a copy must be served within twenty days. (Code, § 130.) The defendant caused a notice of appearance to be served by his attorney in this case, and superadded to such notice were the words: “ And I require all papers therein to he served on me, at my office, No. 140 Broadway, city of New York.” The plaintiffs, treating this notice and requirements as a notice of appearance only, omitted to serve a copy of the complaint, and proceeded to enter judgment. The statute does not require the demand of a copy of the complaint to be made by any particular form of expression; and if, therefore, it be made without reference to the language employed, the defendant secures all the rights consequent thereupon. To demand is to claim, to ask for with authority; and to require is to demand, to ask a thing as of right. The words are synonymous. When the defendant requires all papers to be served upon him, it is demanding that all papers should be so served. A complaint is a paper in a cause which is necessary to the plaintiff’s success, and one which should be served upon the defendant, if he either demand or require it. This is both within the spirit and letter of the statute. The plaintiff’s proceedings are, therefore, irregular, and must be set aside. Leave, however, will be given to the plaintiff to serve a complaint within ten days, without costs to the defendant, and without costs of this motion to either party.