United States v. Rose

14 F. 681 | S.D.N.Y. | 1882

Beown, D. J.

Actions for penalties brought in the name of “The United States” correspond entirely with those brought by the state in the name of “The People,” etc. Bach represents the sovereignty which is plaintiff. Hence, when congress adopts (section 914, Rev. St.) the “forms and modes of proceeding” of the several states, an action by “The United States,” brought in the state of New York, must be in the form and mode prescribed in this state for similar actions by “The People,” etc.; and therefore a reference to the statute and penalty was required to be indorsed on the summons in this action, as prescribed by sections 1897, 1964, and 1962 of the New York Code of Procedure. These sections required an indorsement “upon the copy of the summons delivered in the following form: According to the provisions of, etc., adding such a description of the statute as will identify it wdth convenient certainty, and also specifying the section,’,’ etc.

The matter required to be indorsed is a substantial and material part of tbe writ, because designed to give immediate notice to the defendant of the nature of the aetion. The prceeipe does not supply this notice, and was not a compliance with the statute. The sum* mons having no indorsement was defective in a material part, and hence it is not amendable, and the service of the summons must be Bet aside. Brown v. Pond, 5 Fed. Rep. 31; Peaslee v. Haberstro, 15 Blatchf. 472; Dwight v. Merritt, 18 Blatchf. 305.

Motion granted.