116 N.Y.S. 568 | City of New York Municipal Court | 1909
These are cross motions. The defendant moves to vacate and set aside the summons issued herein, upon the ground that the same was made returnable within two days instead of six days, and the plaintiff moves to amend the summons extending defendant’s time to appear herein to six days. Plaintiff and defendant are residents of the borough of Manhattan, city of Mew York, and the attorney for the plaintiff states that it was a mistake or oversight upon his part that, when said summons was given for service, the wrong summons was served, the time therein being printed that the defendant was summoned to appear in this action within two days after the service of the same instead of six days. The plaintiff was not entitled to a short summons, for the reason that the defendant was a resident of the borough of Manhattan, city of Mew York, "as aforesaid, and in serving the same a mistake was made in not issuing a summons for the defendant to appear within six days after service thereof. In Gribbon v. Freel, 93 N. Y. 93, a summons issued out of the Marine Court of the city of Mew York stated that the time in which the defendant was required to answer was six days, instead of ten, as provided in section 3165 of the Code of Civil Procedure. The court, Earl J., writing the opinion, held that the summons was not an absolute nullity. The insertion of six days instead of ten was an irregularity merely. The defect could have been waived by the general appearance oE the defendants, or consent, express or implied. A judgment entered by default after the service of such'a summons would not have been absolutely void, but simply irregular or erroneous, to be corrected by motion or by appeal. The obvious aim of the Code provision permitting amendments “ in furtherance of justice” (Code Civ. Pro., § 723) is to regulate the authority to the courts as to every process or pleading. Section 721 of the Code of Civil Proéedure enumerates a great variety of defects, covering nearly every conceivable case, which are cured by a pleading or decision. The trend
Ordered accordingly.
