Hunt v. Brennan , 8 N.Y. Sup. Ct. 213 ( 1874 )

Per Curiam.

The decision of this motion in favor of the sheriff, was predicated of the fact that the notice of appearance, served on his behalf, was inadvertent and a clear mistake, no authority having been given therefor by him. The proofs submitted upon the hearing, fully j ustify this conclusion, and the order appealed from, is right. It may be that the process should have been served upon the sheriff; but if that ceremony was not necessary, and a service upon the under-sheriff was sufficient, no injury results to the plaintiff. Whatever rights he secured by that proceeding remain. In the case of Becker v. Lamont^* the decisions bearing upon the exercise of the power to relieve a party from an appearance, put in on his behalf, are collated and criticised; and it will be found that the courts have exercised the authority vested in them, even in relation to stipulations made in open court.^†

The order appealed from, seems to have been made on proper and sufficient grounds, and it should therefore be affirmed.

Ordered accordingly.

* 13 How. Pr., 23.

† The Hiram, 1 Wheaton Rep., 440; 1 Hoff. Ch. Practice, 28, 29.