Dole v. Manley
New York Supreme Court
Motion by defendant, D. S. Manley, to set aside the summons and complaint for a misnomer. The true name of the defendant making the motion is Dean S. Manley, and it is written in the summons and complaint Dennis S. Manley. The summons and complaint were served upon him at the same time. The notice of this motion is entitled “ Daniel E. Dole agt.
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Motion by defendant, D. S. Manley, to set aside the summons and complaint for a misnomer. The true name of the defendant making the motion is Dean S. Manley, and it is written in the summons and complaint Dennis S. Manley. The summons and complaint were served upon him at the same time. The notice of this motion is entitled “ Daniel E. Dole agt. Dean S. Manley, sued by the named of Dennis S. Manley, impleaded with William R. Manley,” and is signed “ William H. Andrews, attorney for defendant, Dean S. Manley, sued, &c.”
1Opinion of the Court
Bowen, Justice.
In Elliot agt. Hart, (7 How. Pr. Rep. 25,) it was held that the misnomer of a defendant could be taken advantage of, by motion, to set aside the summons and complaint. That it was doubtful whether, under the Code, there was any remedy therefor by answer; and that, as there should be some remedy, a defendant should be allowed to resort to a motion, pursuant to the practice prior to the adoption by the supreme court of the rule of 1825.
*139That rule provided, that the court would not thereafter entertain a motion to set aside process, or proceedings in a cause, on the ground of a…
2Cases cited2 opinions
- Mann v. CarleyNew York Supreme Court · 1825
- Elliott v. HartNew York Supreme Court · 1852
3Cited by1 opinion
- Noble v. CrandallNew York Supreme Court · 1888