Bascom v. Feazler

2 How. Pr. 16 | N.Y. Sup. Ct. | 1845

Jewett, Justice.

I must regard the denial of the motion made in this cause at the last April term as decisive of this motion, so far as the merits are concerned (Dollfus and others agt. Frosch, 5 Hill, 493, 4, note A.)

As it respects the irregularity complained of, it is shown by the affidavit of the plaintiff that on the 17th day of January, 1845, prior to the time when the writ of inquiry was executed, he wrote to the clerk of this court at Geneva, that he was not certain that the appearance of the defendant had been entered ; and directed him to enter the defendant’s appearance, default for want of a plea, rule for interlocutory judgment, and that a writ of inquiry issue as early as the next day. The clerk answered this letter, that “this rule was entered October 21, 1844.” If it was not done, it was clearly the negligence or omission of the clerk, and neither party has been prejudiced by the omission, the judgment must be. held to be regular. (2 R. S. 424, 5, § 7, sub. 13, 14.)

Motion denied, with $7 costs.