Elliott v. Hart
New York Supreme Court
The copy summons and' complaint served on the defendant Hart states the names of the defendants as Isaiah N. Hart and Samuel Spear. The copy summons served on the defendant Spear, states their names as Israel N. Hart and Samuel Spear; but in the copy complaint served on him they are named Isaiah N. Hart and Samuel Spear. The true names of the defendants are Isaac N. Hart and Simon Spear.
Read the full summary
The copy summons and' complaint served on the defendant Hart states the names of the defendants as Isaiah N. Hart and Samuel Spear. The copy summons served on the defendant Spear, states their names as Israel N. Hart and Samuel Spear; but in the copy complaint served on him they are named Isaiah N. Hart and Samuel Spear. The true names of the defendants are Isaac N. Hart and Simon Spear. The defendants, by separate attorneys, move to set aside, each as to himself only, the summons and complaint with costs.
1Opinion of the Court
T. R. Strong, Justice.
Prior to 1825 it was the practice to set aside process and subsequent proceedings for misnomer of de*26fendants, if they applied before appearance and before the time for pleading had expired (see 4 Cow. 148, and cases there cited). But in that year a general rule was adopted, by which it was declared the court would not entertain such motions in future, but would leave parties to the remedy of a plea in abatement (see 4 Cow. R. 157; Gra. Pr. 2d ed. 200). No similar provision is contained in the present rules of the court, and it is doubtful whether, under the Code, the…
2Cases cited1 opinion
- Mann v. CarleyNew York Supreme Court · 1825
3Cited by2 opinions
- Dole v. ManleyNew York Supreme Court · 1855
- Smith v. EgnerSupreme Court of Arkansas · 1873