Hyperlawhypertext legal database McCrane v. Moulton 5 N.Y. Super. Ct. 736

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McCrane v. Moulton

5 N.Y. Super. Ct. 736 3 Sandf. 736 Court N.Y. Super. Ct. Decision date 1851-05-10 English

Delivered by Mason, J. (with the concurrence of all the justices.)

Contents

Majority

p. 736
McCrane v. Moulton.

Headnote

A summons by which a suit is commenced, cannot be amended without leave of the court.
May 10, 1851.
In this and several other cases against the same defendant, the plaintiff’s attorney, discovering a mistake in the summons by which he commenced the suits, amended them as of coime, and served them anew. The defendant moved, in each suit, to set aside the amended summons.
A. Mathews, for the defendant.
G. Woodman and G. JBarstow, for the plaintiffs.

A summons cannot be amended without leave of the court. Section 172 of the code, allowing a pleading to be once amended of course, does not apply to a summons, which is not a pleading, but process. The power of amendment is in terms confined to the court by § 173.

The motion to set aside the amended summons in each case is granted without costs.