Schack v. Bryan — 118 Misc. 90

Majority

p. 90

William H. Schack, Plaintiff, v. Charles A. Bryan and Another, Defendants.

Supreme Court, New York Special Term,

February, 1922.

Headnote

Summons — old form — motion to set aside denied — motion to amend granted — rule 105 of Rules of Civil Practice.

Where no complaint was served, a motion to set aside and vacate the service of the summons, which was in the old form, will be denied and a cross motion under rule 105 of the Rules of Civil Practice for leave to amend the summons so as to comply with the new form will be granted.

Motion by defendants to set aside summons.

William S. Coffey, for plaintiff.

McAdoo, Cotton & Franklin, for defendants.

Motion by defendants to set aside and vacate a summons in the old form, which lacks the words “ or, if the complaint is not served with this summons, to serve a notice of appearance.” No complaint was served. Cross-motion by plaintiff under Civil Practice Act, section 105, to amend the summons by adding the omitted words; also by adding the true date. Where a summons in the old form is served, without a complaint, since the Civil Practice Act took effect, and there is neither a waiver nor a motion to amend the summons, it should be set aside on motion. Under Civil Practice Act, section 105, however, a mistake, omission, irregularity or defect may be corrected or supplied, in the discretion of the court, with or without terms, or, if a substantial right of any party shall not be thereby prejudiced, such mistake, omission, irregularity or defect must be disregarded. This new and wholesome rule for the correction of harmless error may be complied with by amending the summons, extending defendants’ time to appear twenty days from the service of the order amending summons, with costs of motion to defendants. Motion to set aside summons denied. Motion to amend summons granted, with ten dollars costs to defendants. Defendant’s time to appear extended twenty days after the service of this order and payment of ten dollars costs to their attorneys.

Ordered accordingly.