Hubbard v. Chapin

Decided February 15, 1865

New York County Courts · decided 1865-02-15

The plaintiff sued the defendant before a justice of the peace of Schoharie county. The summons was returned by the constable personally served, and on the return day the plaintiff appeared and put in her complaint. The defendant then before answering the complaint, moved that the suit be dismissed and defendant be discharged, on the ground that the summons had not been served upon the defendant.

Cited by 1 later decisions — most recently September 1893

1 state decisions

Relies on Fitch v. Devlin

Good law ✅— No negative treatment on recordhow we know

Decided 1865-02-15

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Lamont, County Judge.

¶1The only question in this case is, had the defendant the right to impeach the constable’s return, and show in opposition thereto that the summons issued by the justice had not been served. It seems to me that the case of the New York & Erie RR. Co. agt. Purdy and Adams (18 Barb. S. C. R. 574), is decisive upon this point. Justice Johnson who wrote the opinion in 18 Barb., 574, in reviewing Fitch agt. Devlin (15 Barb. 47), thinks the opinion in that case not well considered. The case in 18 Barb. S. C. R., 574, above referred to, covers the whole ground, and is in harmony with the older cases. I have arrived at this conclusion after considerable doubt and hesitation.

¶2The judgment should be affirmed.