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1 How. Pr. 73

McCartney v. Betts

New York Supreme Court

Decided February 15, 1845

New York Supreme Court · decided 1845-02-15

Motion by defendant to set aside default, fyc., imth costs.—Action, assumpsit, declaration contains a count for goods, wares, &c., sold and delivered and the usual money counts; venue laid in Livingston county; declaration served on defendant 21st November last.

Decided 1845-02-15

Beardsley, Justice.

¶1If service of copy affidavit w7as not sufficient, then the default was regular, and defendant must be let in on terms, the judgment standing as security. The original affidavit should have been served, a copy was not a compliance with the rule (22 Wend., 644, note; Laws 1840, p. 333, §7 ; 25 Wend., 699). On payment of the costs of entering the default and all subsequent proceedings, including the costs of opposing this motion, the defendant may be let in to plead, the judgment standing as security.

¶2Rule accordingly.

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