Crouse v. Reichert — 39 N.Y. St. Rep. 832

Majority

p. 832

Charles E. Crouse et al., Resp’ts, v. Frederick Reichert, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July 7, 1891.)

Headnote

Judgment—Service oe complaint.

A summons and notice were served on defendant, an three days later attachment papers which included the complaint. Defendant appeared and demanded a copy of the complaint, which was not thereafter furnished. Held, that the service of the complaint in this manner was not sufficient to authorize the entry of judgment hy default.

Appeal from order denying motion to set aside and vacate a judgment entered by default.

J. E. Newell, for resp'ts; Homer Weston, for app’lt.

—This was an appeal from an order denying a. motion to set aside and vacate the judgment entered herein

p. 833

July 8, 1891. The summons and notice provided for by § 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 § 479. Ho copy of the pom-plaint was served in pursuance of such demand. On January 6, 1891, twenty 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 6 Civ. Pro. 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 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 7 How., 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 ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Martin and Merwin, JJ., concur.