Swift v. Falconer — 4 N.Y. Super. Ct. 640

Majority

p. 640

Swift v. Falconer and Jewett.

Headnote

In an assistant justice’s court, the plaintiff must prove his demand although the defendant interposes no defence. The default does not admit the plaintiff’s claim.

March 10th;

March 7th, 1849.

Appeal by the defendants from a judgment in one of the assistant justices courts ; where the plaintiff recovered in an action

p. 641

upon a previous judgment. The amount of the latter was set forth in the complaint below. The defendants pleaded three pleas, which the justice on a subsequent day, struck out as frivolous on the plaintiff’s motion, and thereupon without any testimony or proof being given or offered, rendered a judgment for the amount of the plaintiff’s claim.

E. C. Gray, for the appellants.

S. Jones, Jr., for the respondent.

It is claimed in support of this judgment, that under the code of procedure, the complaint is admitted, in a justice’s court, if the defendant suffer a default or otherwise fail to make a defence to the action; and that the plaintiff is thereupon entitled to a judgment for his demand set forth in his complaint, without any evidence or proof whatever. In short, that in this respect justice’s courts are put upon a footing with courts of record.

We think this is not the law. No copy of the complaint is served with the summons, and it would not be safe to permit the practice insisted upon. If, as we are told, such a practice has prevailed to some extent in this city, we can only say, it is time that it ceased. We think the code has wrought no change in this respect.

Judgment reversed.