2 How. Pr. 35
Decided December 15, 1845
New York Supreme Court · decided 1845-12-15
Motion by defendant to set aside default and subsequent proceedings for irregularity. The defendant swore that a copy declaration in this cause was served on him, on Wednesday, the 28th May, 1845, by a person who represented himself as a deputy sheriff; it was served in a field adjoining the highway, where he was at work, and was sure he could not be mistaken as to the time of service.
Decided 1845-12-15
¶1It was insisted by defendant’s counsel that the default was entered too soon ; that the defendant’s affidavit of the time of the service of the declaration should govern, in preference to the deputy sheriff’s certificate.
¶2Held, that the default was irregular; that the affidavit of defendant must control as to the time of service. If the deputy sheriff ha'd made an affidavit of the time of service, it would have been a conclusive answer to defendants.