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Wirts v. Norton

25 Wend. 699 Court N.Y. Sup. Ct. English

Contents

Majority

p. 533
*Wirts vs. Norton and others.

Headnote

A plaintiff will not be permitted to retain a default entered for not pleading, where the only fault on the part of the defendant is the service of a copy of the affidavit of merits, instead of the original; the plaintiff is required in such case to apprise the defendant of the defect.

Motion to set aside a default for not pleading. The defendants served a plea and a copy of the affidavit of merits, required by the practice of the court, instead of the original affidavit. The plaintiff treated the plea as a nullity, and entered the defendants’ default as for the want of a plea. The chief justice set aside the default as irregularly entered, holding, that the plea should have been returned and the defect stated.

Motion granted.