Jackson ex dem' Russel v. Dockstader — 3 Cai. 93

Majority

p. 93

Jackson ex dem’ Russel and others against Stiles Dockstader, tenant, Same against Same, Freelick, tenant.

Headnote

TO set aside the default arid.proceedings in these causes, the defendants relied on an affidavit of their attorneys’ clerk, stating a service of notice of appearance and the consent rule, by leaving them, on the 17th of January 1804, between the hours of 2 and 4 in the afternoon, at the office of J. V. Henry, the agent lor the at

Where there is an affidavit of notice of appearance which is denied on the other side, a regular

p. 94

torney of the plaintiffs, and that there were good and Substantial ¿efenceg> Qn the other hand, from the depositions of the plaintiffs’ attorney it appeared, that Mr. Henry was not appointed their agent, till July 1804, that notice of appearance, &c. had not been received, that in one suit, a writ of possession had been sued out, in May term of that year, and executed in the vacation following, and that in the other, the tenant had compromised and bought the land of the lessor, of the plaintiff.

default and subsequent proceedings will not be set aside on stating a substantial defence, without shewing merits, or a mistake.

NEW-YORK,

May, 1805.

The affidavits go only to there being defences, but this is no evidence of merits. The proceedings have been perfectly regular on the part of the plaintiffs, and nothing appears from whence a mistake could have arisen. The applications must therefore be denied.