Boston National Bank v. Armour — 20 N.Y. St. Rep. 29

Majority

p. 29

Boston National Bank, Resp’t, v. Paul J. Armour et al., App’lts.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

1. Court has no power to interpolate anything in an aeeidavit or SWORN COMPLAINT.

The supreme court has no power to interpolate anything in an affidavit or sworn complaint.

2. Same—Practice—Remedy.

The remedy of a party who has not been served with a correct copy of

p. 30

the sworn complaint, is either to make a tnotion to strike out from the records the original complaint, upon the ground that no copy of that complaint had been served, or for an order setting aside the service of the complaint, upon the ground that no copy of the original had been served.

3. Practice—Every possible relief not granted under general prayer FOR RELIEF.

Under a general prayer for relief upon a molion, every possible relief should not be granted, but the relief granted should be allied to what is asked for, and not entirely distinct therefrom.

Appeal from an order denying a motion made by defendants for an order directing the clerk to change a date in a sworn complaint on file in his office.

C. B. Smith, for app’lts; William E. Stiger, for resp’t.

It seems to us apparent that the court lias no power to interpolate anything in an affidavit or .sworn complaint.

Such a proceeding would be falsifying the oath of the party swearing to the affidavit or pleading.

It may be true that the plaintiff might be held to the pleading served, but such obligation is to be enforced by another and very different method.

The remedy necessarily must be either to strike from the records the original complaint upon the ground that no ■copy of that complaint has been served, or to set aside the service of the complaint upon the ground that no copy of ihe original has ever been served.

Relief of this character is so distinct from that asked for, that under the general prayer for relief such relief should not have been granted. Under a general prayer for relief upon a motion, every possible relief should not be granted, but.it should be allied to what is asked for and not entirely distinct therefrom.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Macomber and Brady, JJ., concur.