11 Misc. 451 | New York County Courts | 1895
The plaintiff and respondent on the 15th day of August, 1894, applied to L. W. Bailey, a justice of the peace of the town of Veteran in this county, for a summons against the defendant. . The justice issued said summons, and made it returnable on the 23d day of August, at 10 o’clock in the forenoon. On the back of the summons he put the following indorsement: “Eleazar Warring is hereby authorized to seme this precept. L. W. Bailey, Justice.” On the 1st day of August the plaintiff served the summons and made the usual return. The plaintiff was not a constable. The defendant did not appear, and on the return day the justice rendered judgment for the plaintiff for $39.45 damages, and $1 costs. The defendant has appealed from said judgment, and insists that the same is void upon the ground that the justice acquired no jurisdiction to render the same, for the reason that the plaintiff was prohibited from serving the summons under section 3156 of the Code of Civil Procedure. The section relied upon by the defendant’s counsel authorizes the justice, at the request of the party, to empower, by written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve or otherwise execute it. The fact that the plaintiff semed this summons is not disputed, but the counsel for the respondent insists that he had the right to do so, having been authorizeef by the justice, and has referred us to the cases of Putnam v. Man, 3 Wend. 202, and Tuttle v. Hunt, 2 Cow. 436. We do not think either of the cases cited is authority. They were decided before the adoption of the present Code, prohibiting a party in a justice’s court from serving a summons in his own behalf, and we are of the opinion that the statute was enacted for the purpose of abrogating the rule established by these cases. The principle decided in the case of Putnam v. Man was that the semice of the summons could not be attacked collaterally, and the case, so far as it established that principle, has been followed, although criticized by Parker, J., in Fitch v. Devlin, 15 Barb. 47; but we have not been cited to a case since the adoption of the present Code, .nor have we been able to find one, where the courts have held that the party to an action in a justice’s court could serve his own summons, and we do not think we would be justified in declaring that the language of the section above