Van Wyck v. Hardy
New York Supreme Court
Appeal from order allowing purchaser at a judicial sale to be discharged, unless certain amendments were made by the plaintiff. The action was for partition. The complaint was filed in the clerk’s office on the 14th of October, 1859. The copy summons filed omitted the names of S. A. Maverick and wife, who were defendants.
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Appeal from order allowing purchaser at a judicial sale to be discharged, unless certain amendments were made by the plaintiff. The action was for partition. The complaint was filed in the clerk’s office on the 14th of October, 1859. The copy summons filed omitted the names of S. A. Maverick and wife, who were defendants. The order of publication was made on the 18th of October, 1859. The deposit in the post-office of the summons and copy complaint for the non-resident defendants, was made on the 22d day of October, 1859. The reason of this delay was, that printed copies of the summons and…
1Opinion of the Court
By the Court.—Hogeboom, J.
I. The objection to the summons is not well taken. Samuel A. Maverick and wife were, and were intended to be, parties to the suit. The summons is not necessary to be filed as a mode of commencing the suit, and if filed, and erroneous by inadvertence or mistake in some way as to the names of the parties, is not conclusive to that extent on the point of who are parties to the suit, that it is incapable of contradiction or correction. It is not necessarily the summons in the suit by way of eminence over all others. In this case, these two names were omitted in the copy…
2Cited by3 opinions
- Beach v. BeachSupreme Court Of The Territory Of Dakota · 1889
- Waffle v. GobleNew York Supreme Court · 1868
- In re the Estate of MorningstarNew York Surrogate's Court · 1932