Majority
p. 198SUPREME COURT. Sawyer and Briggs, overseers, &c., of the town of Mentz, agt. Schoonmaker. Cayuga Circuit and Special Term, February 1853.
Headnote
A motion to set aside a summons and complaint on mere technical grounds, will be denied with costs, where the moving papers are obnoxious to the same objections, to wit that the folios are not marked and numbered pursuant to rule 44.Motion to set aside complaint on the ground that the summons is not endorsed as required by statute (2 R. S. 481, §7), and that the folios are not numbered or marked, pursuant to rule 44.
The action is for penalties for violations of the excise law. The summons and complaint were served together, pursuant to the Code. The motion is founded on two affidavits, either of which exceeds two folios in length, which folios are not marked or numbered.
P. G. Clark, for Defendant.
D. Wright, for Plaintiffs.
It is objected, on the part of the plaintiff, that the folios of the affidavits upon which the motion is founded, are not distinctly numbered and marked, as required by the rule. The objection is true, in point of fact, and although quite technical, is not more so, than the grounds of the motion. The complaint was served with the summons. The former contained, a proper reference to the statute under which the penalties are
p. 199
claimed to have been incurred. There is, therefore, no color of merits in the motion; and when a party comes into court demanding strict practice, on purely technical grounds, he must see to it that his own practice is not obnoxious to similar objections to those which he raises to that of his adversary. Here, too, has been laches in making the motion, which would be readily excused upon the facts slated, in a case where there were merits. Besides, the defendant should have returned the papers with the objections stated, so far as the folios were concerned. The motion is denied, with seven dollars costs.