Hubbard v. Chapin

28 How. Pr. 407 | New York County Courts | 1865

Lamont, County Judge.

The only question in this case is, had the defendant the right to impeach the constable’s return, and show in opposition thereto that the summons issued by the justice had not been served. It seems to me that the case of the New York & Erie RR. Co. agt. Purdy and Adams (18 Barb. S. C. R. 574), is decisive upon this point. Justice Johnson who wrote the opinion in 18 Barb., 574, in reviewing Fitch agt. Devlin (15 Barb. 47), thinks the opinion in that case not well considered. The case in 18 Barb. S. C. R., 574, above referred to, covers the whole ground, and is in harmony with the older cases. I have arrived at this conclusion after considerable doubt and hesitation.

The judgment should be affirmed.