Stannard v. Mattice
New York Supreme Court
The defendant moved to set aside the complaint served in this action on the following grounds: 1. The variance between the complaint and summons in the parties to the action. 2. The complaint contains a claim against Adam Mattice upon a separate liability alone in connexion with a claim for equitable relief. 3. The verification is irregular in being made by the attorney. The place of trial named in the complaint was the county of Schoharie.
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The defendant moved to set aside the complaint served in this action on the following grounds: 1. The variance between the complaint and summons in the parties to the action. 2. The complaint contains a claim against Adam Mattice upon a separate liability alone in connexion with a claim for equitable relief. 3. The verification is irregular in being made by the attorney. The place of trial named in the complaint was the county of Schoharie. The verification was in the following words-. “ State of New York, Otsego County, ss: Abraham Baker, of Worcester in the county of Otsego, being duly…
1Opinion of the Court
Parker, Justice.
The first point is not tenable. Though the summons was issued against both Henry Mattice and Adam Mattice, it was served only on the latter. It appears from the papers that the defendants named in the summons are severally as well as jointly liable; and in such case the plaintiff is at liberty to proceed against the defendant served, in the same manner as if he were the only defendant (Code, § 136, sub. 2). It is only where the defendants are jointly and not also severally liable, that judgment is necessarily to be entered against all the defend*6ants (§ 136, sub. 1). The…
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