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Crouse v. Reichert

15 N.Y.S. 369 Court N.Y. Gen. Term English

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p. 369
Crouse et al. v. Reichert.
(Supreme Court, General Term, Fourth, Department.
July, 1891.)

Headnote

Judgment by Default—Serving Copy op Complaint.
Plaintiff served his summons and notice December 13th. On December 16th he served an attachment, with which was a copy of the complaint. On December 31st defendant served notice of appearance, and demanded a copy of the complaint. On January 6th, 20 days after service of the attachment papers, judgment by default was entered against defendant. Meld, that the service of the attachment papers, which included a copy of the complaint, was not a sufficient service of the complaint within Code Civil Proc. U. Y. § 419, which provides that, “if a copy of the complaint is not served with the summons, plaintiff cannot take judgment by default, ” etc.
Appeal from special term.
Action by Charles E. Crouse et al. against Frederick Reichert. From an order denying a motion to set aside a judgment entered by default, defendant appeals. Code Civil Proc. H. Y. § 419, provides: “A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the summons, the plaintiff cannot take judgment by default without application to the court unless * * * the defendant appears, ” etc. Section 479 provides: “If a copy of the complaint is not delivered to a defendant at the time of the delivery of a copy of the summons to him, * * * his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff’s attorney a written demand of a copy of the complaint, which may be served within twenty days thereafter. ”
Argued before Martin and Merwin, JJ.
Homer Weston, for appellant. J. E. Newall, for respondents.

This was an appeal from an order denying a motion to set aside and vacate the judgment entered herein July 6, 1891. The summons and notice provided for by section 419 of the Code of Civil Procedure were served on December 13, 1890. On the 16th day of December, 1890, an attachment was granted on the complaint and certain affidavits furnished by the plaintiffs, and it was served on that day. On December 31, 1890, the defendant served a notice of appearance, and demanded a copy of the complaint, as provided for by section 479. Ho copy of the complaint was served in pursuance of such demand. On January 6,1891, 20 days after the service of the attachment papers, which included a copy of the complaint, judgment was entered. The only question involved on this appeal is whether the service of the attachment papers, which included a copy of the complaint, was a sufficient service of the complaint to permit the plaintiffs to enter judgment in disregard of the defendant’s demand for a copy thereof. In Sweet v. Steel Co., 6 Civil Proc. R. 69, Merwin, J., held-that, where a complaint was served two days after the summons, and before the defendant appeared, the plaintiff acquired no rights thereunder, and that the service should be set aside. In Paine v. McCarthy, 1 Hun, 78 , the summons was served on June 17th, the complaint was served June 19th, the defendant served no notice of appearance, judgment was entered July 8th, and it was held regular; thus in effect holding "that the defendant could have no advantage from the service of the complaint at a later date. The same doctrine seems to have been held in Van Pelt v. Boyer, 7 How. Pr. 325 . It would seem that the service of the complaint in this action was not sufficient, as it was not served with the summons, nor after the defendant had served his demand. Moreover, it was not served as a complaint in the case, but only as a part of the papers on which the attachment was issued; hence we are of the opinion that the judgment was irregular, and should have been set aside. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

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