The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-08-31


Court or Commoa Pleas
IMPORTANT DECISION or HON. JUDGH DAILY on
POINTS OF PRAOTICE.
AUoUsT 30 -Peiehr against Chsspeutiev The L.
fcodsnts attorney that he served 60
pesrsDce, demand Of q copy Of the cosplaisk
upon person having charge Of the Office of the pisa-
tids attorney, betweea the hours prescribed by ~
Code Go The r.. attorney ds"s -
the notice. Whether this service made IL IN
mstrssi for further appears by the slhdsvis e sss
defesdsst's attorney that on the day after hs ssn
msnocnsnt Of NE action he served upon the siiesH
tce OF exception to the suHciency OF the plAinxGs
surstis and deputy sheriff swe that tho daV
following he delivered ths nsoc Of exception 70 tho e.
tosnny Of the plaintiff THE sufficient notice 81 ~
pesssnoe Tho notice entitled in the suit, add IVES
The notice OF referred in the Codo equiv
slent to Me former nstios OF retainer Crude Rsiss e
tAner baore Code WA deemed an appearance Frs.-
chs Stits q Ill., 1922 and by the 18th Rule Of the
prene Court referred TO- the service OF nouce Of ~
pesrance and retainer generally H. under the Oose.
appearances No form Of this notice 10 presoritsl
cept that must be in writing (Sec 1857, asd ali UaAs
requisite IL, that Is should sufficiently apprss chs piaa
tiff OF the deiendsnto ntien Appeac
pcron, or by attorney ana ufoo the service of suoh
Lotte he ia entitled 10 five days notice OF ssspsest
where assessment il neoeessry obey pa!aacr g.
How 933 and to eight days notice where ta as piss
l. made of relief under The seccna Subdivision II See
PIG The ryice Of notice OF II the
suhccn,ly apprse tho plaintiff that the defendant hyi
appeared In the suit By attoney In Nckenter sssNt
n
notice Of motion 10 act aside the suit sigsed At
toxhey the deteAdant sufficient re.anx.
end in Quckv hurrui G. Cab was decided that notice
OF bail by attorney necessarily imputed notice of
faincr az attorney The plaintiff thsreforc beng svh
ceniy apprisd that the defe udaa had appeared in ts
ut by attorney bound to give notice VI the appl
for relief He only irregular nppcs~
ton without notice but the In which proceeded
entered up his Judgment irregular Tse ssSsn
he was for the recovery Of specific progeny
with DANA for the Withholding Of It, tho Code e.
csres that In such cases the Court NAV order the aar,
Uea he RaaGNh nv "a urvO ami UNtn -
long account be Involved, by reference The plsin16
appears to have waived his claim for damages and
have taken order Of the Court authorizing him TO esto
judgment for the return Of the property What judgm
he enteed upos the order does not very clearly appss
found. All that appears is entry upon the mautss n
the Clerk Judgment for return property june 1887
Though the plaintiff might waive his claim to damages
still was essential, before entering upjudgmeat, tbats
value Of the property should be ascerancd for unless thu
value Of the property amounted to fifty dollar the ps
costs. The section 304 declares that action
cover the posesson Of personal property Tie planaG
cover less than y dollars damages he snail reoovvr
more costs than damages unless he also Prsps1
the value Of which with he damages amounts to Any 81
and the subsequent part Of the section declares sw
the jury court referee by whom the action IL ieA n
case lkethis where claim maae damages II wssd
the value before giving udgmnt Tho second ssbsvtssn
able ths to give Judgment 70 carry the j.d
rsisreacsfor that purpsss Il would perhsps Be ..,s
convenient in every CASE whore tho action rseevs
the e. q ss s r 5, sT
leaving the plaintiff to provo damages at his ele
ton Bot whatever course may be pursued it Is Qu1ss
clear that rroof Of the value must be made bsldgD
the plaintiff enter up judgment and II thu Oo1D
was les explicit upo. tha peint than It is tails s.s
requiring 1t. In the affidavit which the plsinHR b
required TO make 70 obtain the delivery to him q tie
property he swears that the actual value Of It try
two doilars-an amount insufficient to carry oosts
To enable hm therefore, TO costs the vsuB a
the property in the complaint which appears 70 hsyS
been filed on the day which he entered up the ju
meDt il increased being then averrsd to be q ~
value Of fifty dollars and ths COSTS and accordingly sd-
justcd b. the clerk at S4s 81 whether tho oo@paant
be found but it was in his power to avoid asy ce.t-
diction Of bis previous oath by putting 1t In without
reciproca.io0 By such course Of procedure pain-
df after having obtained possession of the properly.
upon giving sufficient security the OF which =
graduated By his own affidavit Of its actual value. b
enabled if that amount u insult cent to carr costs 70
oboin costs BY simply inserting any value he pesses
an unyerined complaint which he may file vhes no pro
ce.dS to enter up his judgment The Code, thu
trary has explicitly guarded against such q Il
requires the plaintiff to prove the value and giving
such proof he would be estopped, by his afdavt,
from making II greater in amount than he had pre,i
ousy declared 1t to ba under oath As this Judgment
and execution must be set aside. Ii IL but necessary
simply to notice the other grounds Of ireguarity sgsd
BY the defendant. see nothing in the Code fbat
qui1es plaintiff in obtaining judgment upss Ar
urs to answer. to give proof that the comoiaat has
been filed and that the defendant has not appeared -
the suit either By attorney Or In person lie Ii dnpi9
required to give proof where service Of the compian
required of the servce Of the and tkst
the Court for the relief demanded in the mpiaist e.
have the judgment entered by the clerk the
may be- The omission to give notice Of the adjusocse
ment. This We have frequently held and suck wss
the decision in Dix against Palmer Is Howard 23 suA
Gilmartn Smith a Sand, g H.. 6sD; when the pss.e
very fully considered In the Superior Court and al
the Justices Of that Court In the decision
An order may be entered setting aside thsjudsmea