Heidenheimer v. Daniel

45 Misc. 385 | N.Y. App. Term. | 1904

Freedman, P. J.

Upon May 23, 1904, the return day of the summons in this action, the plaintiff filed a verified complaint and the defendant filed an answer denying all the allegations of the complaint and signed by her as follows: “ Anna K. Daniel, Defendant in person.”

This answer was verified by the defendant in the usual form. The cause was then adjourned until May 31, 1904, when the parties «.again appeared, the plaintiff by attorney and the defendant in person, and the ease was called for trial. The plaintiff’s attorney at once moved for judgment for the plaintiff upon the pleadings. No grounds for such motion were specified and the same was denied. Thereupon the plaintiff rested her case and the court dismissed the complaint for failure of proof.

Upon this appeal the appellant claims that the omission of the defendant to add to her verified answer her office address or place of business, rendered such answer invalid and void. In this she is in error. There is nothing in the Municipal Court Act that supports such a contention. Section 145 of that act, subdivision 2, provides that: “ In all cases where a written complaint, verified or unverified, is served with the summons, a written answer, verified if the complaint be verified * * * must be filed and issue joined on the return day.” Section 147 provides that “ If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case, except that where the action is on a contract, express or implied, and a copy of a verified complaint was served on defendant at the time of the service of the summons, judgment may be taken as demanded without further proof.” In this case, although the verified complaint was served with the summons, the defendant appeared and filed a written verified answer. It is true that under section 2 of Municipal Court Act, the provisions of the Code of Civil Procedure and the rules and regulations of the Supreme Court are made applicable to the Municipal Court, etc., and rule 2 of the General Rules of Practice requires that: “All papers served or filed must be indorsed

or subscribed with the name of the attorney or attorneys, or the name of the party if he appears in person, and his or their office address or place of business.” It has frequently been held, however, that such omission is mere irregularity and does not necessarily vitiate the paper or its service. Evans v. Backer, 101 N. Y. 289.

The plaintiff might have moved to set aside the answer, specifying her grounds, and the same might then have been amended without injustice to" either party.

Bischoff and Fitzgerald, JJ., concur.

Judgment affirmed, with costs.