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Hatfield v. Atwood

3 N.Y.S. 258 Court N.Y. City Ct. Decision date 1888-10-16 English

Delivered by McAdam, 0. J.

Contents

Majority

p. 258
Hatfield v. Atwood.
(City Court of New York, Special Term.
October 16, 1888.)

Headnote

Judgment—Default—“ Copt ” Summons—Amendment—Notice.
Where the “copy” summons served on defendant requires him to answer within twenty days, and he has no notice of any amendment shortening the time, a judgment by default at the end of six days will be set aside, and defendant allowed to appear, though the original summons contains the word “six, ” instead of “twenty. ”
On motion to vacate judgment.
Herman Fox, for motion.' Tlieall & Beam, contra.

The “copy” summons served required the defendant to answer within “twenty” days. The defendant had the right to assume that the paper served was a true copy of the original, and, having no notice of any amendment shortening the time, was justified in believing and acting on the belief that he had “twenty” days within which to appear. The plaintiff had no right to induce this belief and then take judgment as by default at the end of “six” days. The original summons appears to contain the word “six,” instead of “twenty.” Of this the defendant had no notice. For this variance, and upon the ground that a true copy of the original summons was not served, and that the paper delivered to the defendant misled him into suffering a default to be taken, the judgment will be set aside. As the paper served was not a nullity, (Gibbon v. Freel, 65 How. Pr. 273 ,) the defendant will now be allowed to appear and demand a copy of the complaint, (none having been served.) to the end that the proceedings hereafter to be had may be taken in accordance with the prescribed practice. Ho costs.

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