Majority
p. 307Charles H. Fort, Assignee, Resp’t, v. James Milligan, App’lt. Supreme Court, General Term, Third Department, Filed November 22, 1892.)
Headnote
Justice’s court—Service—Verified complaint.The mere fact that the complaint was verified and attached to the summons the day after it was issued, but before service on defendant, is not prejudicial error.
p. 308
Appeal by the defendant from an order and judgment of affirmance, made by the Eensselaer county court, affirming a judgment rendered by a justice of the peace in Eensselaer county in favor of the plaintiff for $94.40 damages and costs.
The summons in this action was issued by one E. B. Stiles, Esq., a justice of the peace in the town of Lansingburgh, on the 2d day of December, 1891, and on the face of said summons was endorsed an authority to one William Champlin to serve .said summons. On the 3rd day of December, 1891, the complaint in this action was verified and attached to the summons, and both served upon the defendant The person deputized to serve said summons made an affidavit of service of both summons and complaint, and said summons, complaint and affidavit were filed with the justice. On the return day of the summons, the defendant failed to appear, and the justice rendered judgment in favor of the plaintiff without taking any proof of the facts alleged in the complaint.
Myers & Norton (John T. Norton, of counsel), for app’lt; C. D. Hudson, for resp't.
I think, upon the argument, we substantially agreed that there was no merit in this appeal. The principal point argued was that the summons was issued on the 2d and the complaint attached to it on the 3d. I do not see any objection to such practice. The defendant is in no way harmed.
Judgment -should be affirmed, with costs.
Mayham, P. J., and Putnam, J., concur.