Clement v. Crossman

8 Johns. 287 | N.Y. Sup. Ct. | 1811

Per Curiam.

As no attorney was employed on the' part of the defendant, the rule to join in error ought to have been personally served on the defendant, either by delivery to him, or by leaving it at his dwelling-house, or by some other mode of service which the court might specially direct, under the circumstances of the case. This was the practice adopted in Hardenbergh v. Thompson, (1 Johns. Rep. 61.) which was on a certiorari, and the reason of it applies equally to this case, as the party ought not to lose a right acquired by his judgment below, until he has had a reasonable opportunity to be heard. But the principal point here is, whether the defendant is not too late in his application, and whether he lias not waived his right by his laches. He says he did 3 . . ... not hear of the reversal in time to make application before last term, and that he never received any notice of error being brought; and his attorney below says the same thing. These affidavits are rather loose and equivocal. What the defendant and his attorney mean by notice in this case, is not certain. If they mean a direct regular notice in writing, that may not have been given, and yet they may have been sufficiently apprized in season of the pendency of the writ of error to have enabled the defendant to have pleaded, and such, it is very probable, was the fact; for the plaintiif swears, that the attorney below had notice from him, as early as November, 1809# of the writ of error brought, and that the defendant had notice as early as March, 1810. The plaintiff also swears, that before the last November term, he gave the defendant notice of the reversal of the judgment, and had a particular conversation with him upon the subject; and a th:; d person also swears, that in November last the defendant admitted to him his knowledge of the reversal of the judgment.

Here was then a laches, in not making application at the last February term, and it is one to which the defendant ought to be held.

Motion denied.