Brown v. Eaton
New York Supreme Court
Appeal from an order of the special term denying motion to set aside the complaint. The summons and complaint were served together. The defendant after giving notice of appearance, moved to set aside the complaint because of variance.
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Appeal from an order of the special term denying motion to set aside the complaint. The summons and complaint were served together. The defendant after giving notice of appearance, moved to set aside the complaint because of variance. The summons, contained the notice specified in the second subdivision of § 129 of the Code, and the complaint set out a cause of action upon contract for the recovery of money only, and contained a notice that judgment would be taken for a sum certain.
1Opinion of the CourtBg the court. Morgan, J.
When the summons is served before the complaint, and contains a notice under the first *326subdivision of § 129, and the complaint sets out a cause of action under the second subdivision, it is held by several authorities to be such an irregularity as to require the court to set aside the complaint on motion of the defendant; and it seems to be pretty well established that such an irregularity is not cured or waived by a general appearance in the action. It has been doubted however whether the same rule will be applied when the notice in the summons is under the second subdivision, and the cause…
2Cited by7 opinions
- Heinrich v. EnglundSupreme Court of Minnesota · 1885
- Higley v. PollockNevada Supreme Court · 1891
- Naderhoff v. Geo. Benz & SonsNorth Dakota Supreme Court · 1913
- Sweeney v. SchultesNevada Supreme Court · 1885
- Berry v. BingamanSouth Dakota Supreme Court · 1891
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