Ross v. Duffy — 4 N.Y. St. Rep. 889

Majority

p. 889

MARY AMELIA ROSS, Appellant, v. JOHN DUFFY, as Sheriff of Westchester County, Respondent.

Headnote

Action for escape—When Service of summons should not be set-aside.

Appeal from an order made at special term, annulling, quashing and setting-aside the service of the summons.

Luiuor & Switts, for appellants, Glose & Bobertson, for respondents.

It must be conceded that by the escape of Levinnes aprima facie cause of action arose against the sheriff.

The facts upon which this motion is made are to some extent in dispute. Whether or not they afford a defense to the action is a question that requires, no little consideration.

The most appropriate way to ascertain the facts, and determine the consequences which flow from them, is by the systematic methods of a regular trial.

The defendant’s answer will state the facts upon which he relies more satisfactorily than the affidavits before us, and should a demurrer be interposed to-the answer, the resulting discussion might be very useful.

The order should be reversed, and the cause proceed in the usual manner. Order reversed, with ten dollars costs and disbursements.