Palmer v. Moeller — 19 How. Pr. 322

Majority

p. 322

NEW YORK COMMON PLEAS.

Palmer agt. Moeller.

Headnote

Where an action is commenced in the New York district (justices’) courts by a non-resident plaintiff, by long summons, without security, it is an error for which this court on appeal will reverse the judgment.

And the decision of this court upon the question will not be allowed to be carried to the court of appeals, where the same question is pending in the latter court.

New York General Term,

June, 1859.

Daly, Brady and Hilton, Judges.

This action was commenced by a non-resident plaintiff, by long summons and without giving the security required by the act relative to the district courts, passed in April, 1857. At the trial, upon these facts appearing, the defendant asked that the action be dismissed, (see act, § 45,) which the justice

p. 323

refused. We hold this to be error, and therefore reverse the judgment.

The respondent now asks for leave to go to the court of appeals, that he may have our decision upon this question reviewed.

We have already permitted a case, involving this precise point, to be taken to that court, and as the question is mainly one of practice in justices’ courts, under the provisions of the act referred to, not involving the merits of an action, and in that point of view cannot be said to assert any substantial right of a party, we do not feel disposed to multiply cases on the subject in the court of appeals. For this reason the application is refused.

Motion denied.