Williams v. Sholto
The Superior Court of New York City
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.
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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.
1Concurrence
(Oakley, Ch. J.,
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*642ing to consider it as properly…
2Cases cited1 opinion
- City of Buffalo v. ScrantonNew York Supreme Court · 1839