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Union Furnace Co. v. Shepherd

2 Hill & Den. 413 Court N.Y. Sup. Ct. English

Delivered by Cowen, J.

Contents

Majority

p. 413
The Union Furnace Company vs. Shepherd and others.

Headnote

In general, a variance between the copy of a paper served, and the original, is not fatal, unless calculated to mislead or prejudice the party served.
Accordingly, where, in a suit commenced without writ, the declaration on file was entitled specially of January term, 1842, and in the copy served the title was the same, except as to the year, which was 1840, to each of which was annexed by way of particular, a copy of a note which did not become due till 1842 ; 7ieldy that the service would not be set aside, the variance being such as was not likely to mislead the defendant.
The service of a copy affidavit to be used as the foundation of a special motion, is good without the addition of the jurat, if the facts stated are intelligible without it.
Motion to set aside the service of the declaration on Shepherd, as irregular.
The declaration on file was entitled of January term, to wit, the twenty-first day of February, in the term of January, in the year of our Lord one thousand eight hundred and forty-two. The copy served was the same, except that the year was forty, instead of forty-two.
p. 414
To both was attached, as a bill of particulars, a promissory note to which the defendants were parties, dated September 28th, 1841, at 90 days.
D. Burwell, for the motion.
E. T. Marsh, contra.

By the Court,

It is impossible that this variance from the title of the declaration on file could have misled Shepherd when compared with the bill of particulars of a note not due on its face till 1842. Whether the defendant can be misled or not, I think furnishes the true test of the service of process, (and this declaration was in the nature of process,) as well as of the service of a notice. It is said that the statute requires that a copy of the declaration should be served; and were we to follow some of the earlier decisions of Westminster Hall on the uniformity of process act, we must indeed hold this service to be defective since the decision that a title to a declaration intended for process is a material part of it." (Paul v. Graves, 5 Wend. 76 .) But the earlier practice in England on the statute •mentioned has been departed from as impracticably strict; and now, if the defendant cannot he misled or prejudiced by a mistake in the copy, the service is holden well. (Vid. the cases in 3 Chit. Gen. Pr. Am. ed of 1836, p. 229 to 232.) It is a rule with us that the copy of an affidavit to be used as the foundation of a special motion must be served: and yet, we dispense with a copy of the jurat where the facts purporting to be stated in the body of the affidavit are intelligible without it. (Livingston v. Cheetham, 2 John. R. 479. Chase v. Edwards, 2 Wend. 283 .)

Motion denied.

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