Warner v. Kenny — 3 How. Pr. 323

Majority

p. 323

Josiah Warner vs. Michael Kenny.

Headnote

The notice in a summons for the relief demanded in the complaint, should state that the application for such relief will be made to the circuit, in the county where the venue is laid, or place of trial is designated. "Whether there be an issue joined, or judgment be taken on failure to answer, the application should likewise be made in such county.

Albany Circuit,

Dec., 1848.

Before Parker, Justice.—The complaint was for slander, and the venue laid in Ulster. The summons contained a notice to the Defendant, that the Plaintiff would apply at the next Albany

p. 324

circuit, to be held on the first Monday of December, for the relief demanded in the complaint. Twenty days having elapsed after service and no answer having been served, Plaintiff applied at the Albany circuit for judgment.

J. B. Steele, for Plaintiff.

I think the proceedings are irregular. The Plaintiff having designated, in his complaint, the county of Ulster as the place for trial, ought to have given notice in his summons that he would apply at the next Ulster circuit for the relief demanded in his complaint. Ulster is the county for trial, whether there be an issue joined or judgment be taken on failure to answer. In the latter case, it may be necessary to bring witnesses before the court to show the amount of damage the Plaintiff has sustained; and the Defendant has a right to appear on assessing the damages, to mitigate the amount, as he had formerly on executing a writ- of inquiry. He can not be compelled to come to Albany to do this, when the venue is in Ulster. The Plaintiff’s attorney may withdraw the papers and serve them on the Defendant after they shall have been properly amended.