Journal Co. v. Thompson , 10 N.Y. St. Rep. 627 ( 1887 )

Per Curiam.

The question whether the summons in the city court, served July 26, had the date of return filled in, or whether such date was in blank, was one on which there was contradictory evidence. The county judge evidently decided that the date was filled in. And thereupon, as the defendant had not appeared on the trial, he granted a new trial under section 3064.

On this appeal we see no reason why we should reverse the decision of the county judge on this question of fact. He had a better opportunity than we have to decide this question. There was, as above mentioned, conflicting evidence, and there must have been mistake on some side. The learned judge has held that the plaintiff was correct in this controversy, and we ought not to reverse his decision.

This view disposes of the case. The defendant has had his day in court on the question of the validity, of the summons, and has subsequently had his day in court to try the merits of the litigation. No injustice has been done him.

Order affirmed, with ten dollars costs and printing disbursements.