7 How. Pr. 297 | N.Y. Sup. Ct. | 1852
The evidence before the court shows very satisfactorily that the summons was never served upon the defendant. Yager, who made the affidavit of service, was not a deputy of the sheriff, but a person employed
I can not agree to the proposition that a return of a sheriff or an affidavit of a person acting in his place is conclusive upon the defendant, and can only be questioned in an action for a false return. The plaintiff relies upon the case of Putnam vs. Mann (3 Wend. 202). It was there held that a plaintiff, who was a constable, might serve a summons in his own favor issued by a justice of the peace; and that his return could not be impeached in an action of trespass for an arrest under an execution issued on a judgment rendered on the return of such summons: but that if the return was false, the remedy was by action against the constable for a false return. The question decided in that case, and evidently with some hesitation, was, whether trespass or-ease was the proper action for redress, and the court held the only remedy to be case for the false return. It was there a question between two remedies by action. No motion could have been made in the original action to set aside the proceedings for want of service, a justice of the peace having no power after judgment to entertain such a motion. But no such objection exists in this case. This court has full power over its own process to protect against an improper use of it. Even in cases of mere irregularity, the statute authorizes the setting aside of the judgment on motion within one year after it is rendered.
In all questions relating to the proceedings in the action, the
To hold the affidavit of service conclusive and drive the defendant to an action, would inflict upon him a grievous, and in many cases remediless, wrong. A judgment obtained without notice, and by a false return, might be so large as to sweep away the whole of a defendant’s estate, and the remedy for damage lie only against an irresponsible third person who made the affidavit. With the ample powers of this court over its own process and proceedings, there is surely no reason for such injustice.
I think the order made at special term should be reversed with $10 costs, and the motion granted with costs.