Lent v. Moyer — 91 N.Y.S. 975

Majority

p. 975

(45 Misc. Rep. 139)

LENT et al. v. MOYER.

(Herkimer County Court.

October, 1904.)

Headnote

1. Action Befoee Justice—Nonsuit.

A summons and verified complaint were filed in a justice’s court, and defendant was personally served, as provided by Laws 1881, p. 5G2, c. 414, as amended by Laws 1889, p. 641, c. 472. On the return of summons, defendant appeared in person, but no appearance was entered for plaintiff, and the complaint was dismissed, and judgment of nonsuit entered. Held that, in the absence of an answer filed, the court should have entered judgment for plaintiff against defendant for the amount demanded without further proof; • Code Civ. Proc. § 3013, subd. 2, providing for judgment of nonsuit against plaintiff, not applying where summons is accompanied by verified complaint and defendant fails to file verified answer.

Appeal from Justice Court.

Action by William B. Lent and Arthur C. Moyer against Charles Moyer. From a judgment for defendant in a justice court, plaintiffs appeal.

Reversed.

R. F. Lewis, for appellants.

Richard Hurley, for respondent.

This action, arising on contract for money only, was brought in justice’s court. A written complaint, fully alleging the facts constituting the cause of action and specifying the amount due from defendant to plaintiffs was attached to the summons and served therewith personally upon defendant, as provided for by chapter 414, p. 563, of the Laws of 1881, as amended by chapter 473, p. 641, of the Laws of 1889. The summons and complaint were duly filed with the justice. At the return of the summons the defendant appeared in per

p. 976

son, but no appearance was entered on the part of plaintiffs. After waiting an hour, the defendant asked to have the complaint dismissed, and his request was granted, and judgment of nonsuit entered, with costs.

I think the justice made a mistake in dismissing the action. The plaintiffs had done all that the statute required them to do. There was no defect in the summons, complaint, verification, or proof of service. At the return of the summons the defendant appeared, but failed to answer the complaint; hence he shall be deemed to have admitted the allegations of the complaint as true, and, the summons and complaint having been filed, it then became the duty of the court to enter judgment for the plaintiffs and against the defendant for the amount demanded in the complaint, without further proof. The action was dismissed by the justice, as he states, in pursuance of the provisions of subdivision .2 of section 3013 of the Code of Civil Procedure, which provides that judgment of nonsuit must be rendered against the plaintiff if he fails to appear within one hour after the summons is returnable. I do not think that the provisions of that section apply where the summons is accompanied by a verified complaint and the defendant fails to file a verified answer as prescribed by said statute. An appearance on the part of the plaintiff would not have changed the situation unless the defendant filed an answer, and, had the defendant done so in this case, he then perhaps would have been in a position to have properly asked for a judgment of nonsuit if the plaintiff still failed to appear. I have come to the conclusion that the judgment appealed from herein should be reversed, and judgment is ordered accordingly reversing the same, with costs.

Judgment reversed, with costs.