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Williams v. Sholto

6 N.Y. Super. Ct. 641 4 Sandf. 641 Court N.Y. Super. Ct. Decision date 1851-08-26 English

Decision Majority — Duer, J., · Concurring — (Oakley, Ch. J.,

Contents

Majority

p. 641
Williams v. Sholto.

Headnote

A party, upon whom is served a pleading defective in form, must return it to the party serving it, if unwilling to accept it as a perfect pleading.
Where an answer was served, entitled “ Supreme Court,” instead of “ Superior Court,” and the plaintiff, without returning it, or notifying the defendant, treated it as a nullity and entered judgment, the judgment was set aside as irregular.
August 26, 1851.
Motion to set aside a judgment as irregular. It appeared that an answer had been served in due time, denying specifically all the allegations in the complaint, and. regular in form in every respect, except that it was entitled in the supreme court, instead of supmor court. The plaintiff’s attorney did not return the answer to the defendant’s attorney, nor give him notice of the mistake, but treating the answer as a nullity, proceeded to enter up judgment as for the want of an answer.

concurring.) — Where the object and intent of a pleading are certainly known to the attorney upon whom it is served, as they must have been in this case, he has no right to treat it as a nullity, merely upon the ground that it is wrongly entitled, or is otherwise defective in form. If he is unwilling to accept it in its actual form, he must return it so as to give to the opposite attorney the opportunity of correcting the mistake • but if he retains it and gives no notice of the de,fect, he is to be considered as waiving the.objection, and eleet

Concurrence

p. 642
ing to consider it as properly amended. These just and reasonable rules were established by the supreme court under the former more technical system of practice, and there is no pre text for saying that they are inconsistent with the provisions of the code. On the contrary, they are exactly such as a just regard to the intent and spirit of the code should compel us to adopt. (City of Buffalo v. Scranton, 20 Wend. 676 ; Wirts v. Norton, 25 Ibid. 699 ; Platner v. Johnson, 3 Hill, 476 .)

The motion is granted with costs.[1]

(a) (a) See Laimbeer v. Allen, ante vol. ii. p. 648; White v. Cummings, vol. 3, p. 716.

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