Hatfield v. Atwood — 18 N.Y. St. Rep. 285

Majority

p. 285

William Hatfield v. Daniel T. Atwood.

(City Court of New York, Special Term,

Filed October, 1888.)

Headnote

Summons—Effect of error in inserting “twenty” days instead of "“ six.”

Where a summons is served out of the city court of New York and the defendant is required to answer within “twenty'' days, the defendant has the right to assume that the paper served is a true copy of the original, and a judgment entered before the expiration of the “ twenty” days is irregular.

Motion to set aside judgment.

Herman Fox, for motion; Theall & Beam, opposed.

The “copy” summons served required the defendant to answer within “twenty” days. The defendant had the right to assume that the paper served was a true copy of the original, and having no notice of any amendment shortening the time was justified in believing and acting on the belief that he had “ twenty ” days within which to appear. The plaintiff had no right to induce this belief and then take judgment as by default at the end of “ six” days. The original summons appears to contain the word “six” instead of “twenty.” Of this, the defendant had no notice. For this variance and upon the ground that a true copy of the original summons was not served, and that the paper delivered to the defendant misled him into suffering a default to be taken, the judgment will be set aside. As the paper served was not a nullity ( 65 How. Pr., 273 ), the defendant will now be allowed to appear and demand a copy of the complaint (none having been served), to the end that the proceedings hereafter to be had may be taken in accordance with the prescribed practice. " No costs.