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1 Hilt. 526

Spring v. Baker

New York Court of Common Pleas

Decided January 15, 1858

New York Court of Common Pleas · decided 1858-01-15

<p>Upon appeal from a judgment rendered by default in a district court, tbe justice’s return showed that the summons and complaint, verified, were returned, by a constable of the city, duly served, and that, the defendant not appearing on the return day, judgment was rendered for the plaintiff for the amount claimed, without further proof. Tho complaint was neither set out in the return nor referred to as annexed. Held, insufficient.</p> <p>Where judgment is rendered in a district court without proof] and on default, upon a constable’s return of the personal service of a summons and complaint, the statute must be strictly compliod with. The justice’s return, in such a case, should show that a copy of the complaint was served, verified by tho party pleading, or his agent or attorney, as the case may be. A mero return that tho summons was served with the complaint is not sufficient.</p> <p>And the return should eitlior set out the complaint served, or, if it is annexed thereto, should refer to it as tho complaint upon which judgment was rendered. Whether a claim for a balance of account, on a settlement of partnership affairs, is assignable. Quaere? per Daly, First Judge.</p>

Decided 1858-01-15

Daly, Eiest Judge.

¶1The return does not show that the complaint upon which the judgment was rendered was served with .the summons, or upon what complaint the judgment was given. It does not show that the complaint was verified by the oath of the party pleading, or by whom it was verified, or even state that it was duly verified. The return is simply that the summons was, by the constable’s return, certified “to have been served with the complaint verified.”

¶2Under the new provision, by which, in cases of default, judgment may be taken upon the complaint without proof, it must appear that the statute has been strictly complied with. What appears to have been a complaint is annexed to the return,.but it is not stated to have been the complaint served, or upon which the judgment was rendered. Litchfield v. Burwell and others, 5 How. Pr. R. 341. If it was, it was insufficient, as it does not aver when the claim in suit was assigned to the plaintiff; and, even if that had been averred, I think it doubtful whether it states sufficiently any cause of action which could have been the subject of an assignment.

¶3■Judgment reversed.

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