Hitchcock v. Van Pelt

By the Court.

The judgment .m this case was by default. The constable who served the process appeared for the plaintiff. The defendant asks to have the judgment reversed for this cause. The case referred to by the defendant’s counsel (Ford v. Smith, 11 Wend. 73) does not warrant the reversal. In that case the defendant appeared, and the constable not only appeared but acted as counsel on the trial of the case, and the case therein referred *486to warranted art appearance to pnt in the declaration. Here the defendant did not appear. It is true, the constable not only appeared for the plaintiff, and put in the complaint in this case, but acted in producing the proofs upon which the judgment by default was awarded. But that section does not apply to the courts in this city, and we are referred to none on the points which is applicable. I know of no similar provision applicable to the courts in this city. If there is any, the 'appellant should have referred us to it.

But I think the defendant has sufficiently excused the default, and shows by his affidavit circumstances from which it may reasonably be concluded that injustice has been done by the judgment against him.

The judgment should be suspended, and a new trial ordered on the 8th January next, at the opening of the court; respondent’s costs of appeal to abide event.

Ordered accordingly