1 Hilt. 49 | New York Court of Common Pleas | 1856
The summons in this case commanded the defendant to appear and answer F. C. Gossling & C. Boss, in a plea of value of personal property to their damage, $500. On the return day, the plaintiff, after amending, by striking out tbe name of Boss, to which no objection was made, complained that defendant owed her $42.40 for wrongfully taking some knitting yarn. The defendant objected to the complaint that the summons did not state the cause of action, and that tbe names of tbe plaintiffs were not stated in full, and then, without taking any decision upon bis objection, answered by a general denial. The action was then adjourned and several adjournments were subsequently made. On. tbe day of trial, the plaintiff called a witness to tbe stand, and then the defendant’s counsel objected to an}' proceeding on the'part of the defendant, until the justice heard and disposed of his application for judgment, by reason of the irregularities in the summons already mentioned. The justice sustained all the objections and gave judgment for the-defendant.
This court has held, since the decision of Lighter v. Haskins (Nov. G. T. 1851), that pleading to the merits is a waiver of all defects to tbe form of the summons and all irregularities therein. Andrews v. Thorp (1 E. D. Smith, 615), and see Monteith v. Cash
I have considered the effect of not obtaining from the justice a decision before pleading to the merits, and have come to the conclusion that it was a waiver of the objection, and that the objection was made and allowed too late when presented again to the justice, and decided by him. Besides, there was no plea to the jurisdiction in this case. An objection was made which was not embodied in the answer, and issue having been joined by an answer to the merits, the court should not then “leave entertained the objection. The judgment is wrong, and must be set aside.
Judgment reversed.