Philips v. Prescott

9 How. Pr. 430 | N.Y. Sup. Ct. | 1854

T. R. Strong, Justice.

The grounds of irregularity specified in the notice of motion are the following: 1. That no proof was filed that an answer had not been received. 2. That an answer was served within the time allowed by law for answering.

It appears by the papers on the motion that the summons in the action was served on the 5th of June : that on the 26th of June an answer denying each and every allegation in the complaint, signed by the defendant in person, and verified by him on that day, was served on the plaintiff’s attorneys: that the answer was on the same day returned by the plaintiff’s attorneys with an endorsement thereon, that it was served “too late by one daythat the complaint, which is upon a promissory note, was drawn and sworn to before the clerk on the 27th of June: and that on the same day an affidavit was made by one of the plaintiff’s attorneys, before the clerk, that no answer or demurrer had been received, except that on the 26th day of June, 1854, and more than twenty days after service of summons, a copy of answer was left at the office of Smith & Cornwell, and was on the same day returned by mail directed to defendant at Newark, in said county, with an endorsement on it, “ Served 26th June, 1854, too late by one dayupon the filing of which affidavit with the summons, proof of service, and complaint, judgment was entered against the defendant, and execution was issued thereon.

The attorneys for the plaintiff were mistaken in supposing that the time to answer had expired when the answer was served; the 25th of June, being the last of the twenty days after service of the summons, was Sunday, and the defendant was entitled to the whole of the 26th for answering. But the answer was nevertheless irregular, for the reason that the complaint had not then been prepared, and the plaintiff’s attorneys had a right to return it upon that ground. They should, upon returning it, have specified that ground of irregularity, instead of the one stated by them; but I think it should not be held to have been waived by their omitting to do so, and stating an insufficient reason. The defendant has not been misled: if the true ground of irregularity had been given, it was too late to correct it, and it appears that the attention of the agent of the defendant was called to the true ground before the papers were prepared for this motion. Besides, the defendant was guilty of great impropriety, speaking in the mildest form, in making and verifying his answer without any knowledge of the complaint: such an answer is a fraud upon the rules and practice of the court, and ought not to be permitted to stand without clear evidence of an assent by the plaintiff’s attorneys to overlook the irregularity, and such evidence is wanting.

It is undoubtedly essential to the regularity of the judgment, not only that the plaintiff should have been entitled to it when it was entered, but that the proper proof that no answer had been served which he was bound to regard, or which he had retained, should have been furnished to the clerk. The affidavit filed with the clerk showed that an answer had been received in time, which was returned as too late; but it also appeared to the clerk, that the complaint upon which he was asked to enter judgment, was not verified or filed until the 27th, after the time for answering had expired, which was sufficient evidence that it had not been completed or served before that time. It could not properly be verified after service. He had before him, therefore, full proof that the answer served was irregular, and that it had been returned, and I think was not .bound by any thing in the papers to regard the irregularity as waived. In my opinion, the proof presented to the clerk was sufficient to warrant the judgment.

The defendant, if he desired to answer, should within the time allowed for the purpose have demanded a copy of the complaint, and upon receiving the same, put in an answer thereto. The motion must be denied, with seven dollars costs.