Miller v. Stettiner
The Superior Court of New York City
Motion to set aside a summons. This motion is made upon the complaint and the affidavit of Simon Stettiner, who states that he is the person served with the summons and complaint, and is the co-partner of the defendant Kamps, under the name and firm of Stettiner and Kamps, and that there is no person named Henry Stettiner who is a member of that firm ; and the complaint shows that the action is for goods alleged to be sold to the two defendants.
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Motion to set aside a summons. This motion is made upon the complaint and the affidavit of Simon Stettiner, who states that he is the person served with the summons and complaint, and is the co-partner of the defendant Kamps, under the name and firm of Stettiner and Kamps, and that there is no person named Henry Stettiner who is a member of that firm ; and the complaint shows that the action is for goods alleged to be sold to the two defendants. And the affidavit of Kamps is also produced, to the effect that his co-partner’s name is Simon Stettiner, and that there is no person named Henry…
1Opinion of the Court
Woodruff, Justice.
When this motion was made, I expressed some surprise that counsel had deemed a motion to set aside the process or proceedings in a cause, on the ground, of misnomer of the defendant, warranted by any existing practice, and intimated that since I came to the bar, I had not known of such a motion. I was therefore surprised when my attention was called to the case of Elliott agt. Hart, (7 How. Pr. R., 25,) in which such a motion was granted, and have been induced thereby to examine the subject.
For more than thirty-five years past no such motion has been entertained in this…
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