Cramer v. Fitzsimmons
New York Supreme Court
, This suit was commenced by the filing and service of a declaration. The declaration was served on the seventh of October. On the twenty-seventh of the same month the defendant served on the plaintiff’s attorney, J. Cramer 2nd pleas of the general issue and usury, which not having the signature of counsel, were treated as a nullity by the plaintiff’s attorney, who on the thirty-first of October, served a notice of assessment for the fifteenth of November.
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, This suit was commenced by the filing and service of a declaration. The declaration was served on the seventh of October. On the twenty-seventh of the same month the defendant served on the plaintiff’s attorney, J. Cramer 2nd pleas of the general issue and usury, which not having the signature of counsel, were treated as a nullity by the plaintiff’s attorney, who on the thirty-first of October, served a notice of assessment for the fifteenth of November. After the service of such notice the defendant applied to counsel in Albany, to look into the regularity of the plaintiff’s proceedings,…
1Opinion of the Court
*252By the Court,
Sutherland, J.
The plaintiff was entitled to treat the plea as a nullity : and the defendant might have | insisted upon the irregularity which occurred in the entry of the rule for default on the wrong side of the common rule book, had he been misled or prejudiced by it; but he was not prejudiced by the mistake which had been made by the plaintiff. Had he searched the common rule hook under the appropriate letter, for the rule to plead, and such rule had not been found, and relying upon his search he had omitted to plead, a very different case would have been presented from the…
2Cited by1 opinion
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