107 N.Y.S. 540 | N.Y. Sup. Ct. | 1907
The motion asks to have the complaint stricken out upon the ground that it does not conform to the summons, the variance alleged consisting of the' fact that in the summons the plaintiff appears as suing individually and alone, whereas in the complaint it is stated that he is suing in behalf of himself and all other stockholders of the defendant. In opposing the motion the plaintiff’s attorney cites Cochran v. American Opera Co., 20 Abb. N. C. 114; Bauer v. Platt, 72 Hun, 326, and Hilton Bridge Const. Co. v. Foster, 26 Misc. Rep. 338, as authorities that the summons is correct in its present form. An examination of those cases will show, however, that the question under discussion was the sufficiency of the complaint against demurrer, and not of variance between the summons and complaint. In Cochran v. American Opera Co., 20 Abb. N. C. 114, 120, the court, after observing that the summons cannot be before the court
Ordered, accordingly.