25 Wend. 699
Decided September 15, 1841
New York Supreme Court · decided 1841-09-15
<p>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.</p>
Cited by 3 later decisions — most recently April 1854
3 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1841-09-15
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¶1Motion 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.
¶2Motion granted.