Spring v. Baker — 1 Hilt. 526

Majority

p. 526

Christian Spring v. William Baker.

Headnote

Upon appeal from a judgment rendered by default in a district court, tbe justice’s return showed that the summons and complaint, verified, were returned, by a constable of the city, duly served, and that, the defendant not appearing on the return day, judgment was rendered for the plaintiff for the amount claimed, without further proof. Tho complaint was neither set out in the return nor referred to as annexed. Held, insufficient.

Where judgment is rendered in a district court without proof] and on default, upon a constable’s return of the personal service of a summons and complaint, the statute must be strictly compliod with. The justice’s return, in such a case, should show that a copy of the complaint was served, verified by tho party pleading, or his agent or attorney, as the case may be. A mero return that tho summons was served with the complaint is not sufficient.

And the return should eitlior set out the complaint served, or, if it is annexed thereto, should refer to it as tho complaint upon which judgment was rendered. Whether a claim for a balance of account, on a settlement of partnership affairs, is assignable. Quaere? per Daly, First Judge.

Appeal by defendant from a judgment entered by default in tbe Second District Court. Tbe return of tbe justice stated that a summons was duly issued, requiring tbe defendant to appear and answer, &c.; “that tbe said summons was, by tbe return, duly made thereon by B. Carpenter, one of tbe constables of the city and county of New York, certified to have been served, with tbe complaint verified, on tbe defendant in person in the city of New York, on the 12th 'day of June, 1857that on the return

p. 527

day tbe plaintiff appeared, but tbe defendant did not," whereupon judgment was rendered for tbe plaintiff for tbe amount specified in tbe summons and complaint, without further proof. A verified complaint, entitled in tbe cause, was attached to the return, but was not referred to therein. This complaint averred that the defendant was indebted to one-Cornell in the sum of $17, “ on an account, for the settlement of the closing of a partner? ship of the firm of Baker & Cornell,” which account and claim Were assigned by Cornell to the plaintiff “ on or about the-day of-,” and averred a demand of payment thereof from the defendant, and a refusal by him to pay.

John Baker, for the appellant.

Peterson and McConnell, for the respondent.

The return does not show that the complaint upon which the judgment was rendered was served with .the summons, or upon what complaint the judgment was given. It does not show that the complaint was verified by the oath of the party pleading, or by whom it was verified, or even state that it was duly verified. The return is simply that the summons was, by the constable’s return, certified “to have been served with the complaint verified.”

Under the new provision, by which, in cases of default, judgment may be taken upon the complaint without proof, it must appear that the statute has been strictly complied with. What appears to have been a complaint is annexed to the return,.but it is not stated to have been the complaint served, or upon which the judgment was rendered. Litchfield v. Burwell and others, 5 How. Pr. R. 341. If it was, it was insufficient, as it does not aver when the claim in suit was assigned to the plaintiff; and, even if that had been averred, I think it doubtful whether it states sufficiently any cause of action which could have been the subject of an assignment.

■Judgment reversed.