Robinson v. Sinclair

Headnote

The original affidavit accompanying a plea must be served, a copy is notja compliance . with the rule. A general affidavit of merits must be made by defendant on moving to set aside default $c. An original affidavit of merits made, to annex to a plea will not answer.

Motion by defendant to set aside default and subsequent proceedings for irregularity, with costs.—This suit was commenced 25th December last, by declaration containing indebitatus, money and merchandise, counts, only, with copy note annexed and notice that it was the only demand for which the suit was brought. On the 14th January last, defendant’s attorney prepared plea of general issue, affidavit of merits, and notice of set off, and served copies thereof on plaintiff’s attorney by putting same in post-office at New York, directed to plaintiff’s attorney at Albany, and paying postage. On the 18th of January last, defendant’s attorney received from plaintiff’s attorney through the post office the copy plea, affidavit of merits, See., which he had served, with a notice from plaintiff’s attorney that he could not accept them, inasmuch as the plea was not accompanied by the original affidavit required by the rules and practice of this court. The same day they were received, defendant’s attorney annexed the original affidavit to the copy plea, and returned same by mail to plaintiff’s attorney. On the 24th of January last, plaintiff’s attorney returned the same to defendant’s attorney, with a notice that they came too late ; the defendant’s default was entered previous to the 18th of January, the day on which defendant’s plea &c. were mailed at New York. The defendant has annexed to his moving papers

the original affidavit of merits to annex to his plea, sworn to on the 14th January last, and has no other affidavit of merits for this motion.