Avery v. O'Dwyer

280 A.D. 766, 113 N.Y.S.2d 686

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1952
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered February 28, 1952, in New York County, which (1) granted a motion by defendants to vacate and set aside the summons and service of summons, and (2) denied a motion by plaintiffs to correct the title of the summons and complaint.

Per Curiam.

Special Term correctly held that the attempted service upon the individual defendants, either as individuals or as officials, cannot be sustained and that part of the order appealed from should be affirmed.

We think, however, that Special Term should have granted plaintiffs’ motion to correct the title in the summons and complaint to include the name of the City of New York inadvertently omitted therefrom. The captions did not explicitly include the city formally as a defendant but joined the other defendants “Individually and On Behalf of the City of New York.” The papers, however, served clearly and unmistakably gave notice to the city that it was a defendant in the action. This is demonstrated by the whole context of the complaint. The city was not prejudiced as it fully understood and indeed acted on such notice.

Jurisdiction was acquired and the inadvertent defect in description can be and should be cured pursuant to the provisions of section 105 of the Civil Practice Act. That section, inter alia, provides that if a substantial right of a party is not prejudiced, an omission or defect “ must be disregarded.” On this record a new party is not added: we hold that jurisdiction was acquired and that under the statute, the inadvertent formal omission may be corrected; otherwise form is exalted above substance (People ex rel. Durham Realty Corp. v. Cantor, 234 N. Y. 507, revg. 201 App. Div. 834, on the dissenting opinion of Clarke, P. J.).

The order appealed from should be modified by affirming the vacatur of the summons and complaint on the individuals named either individually or officially; and by reversing that part of the order which denies plaintiffs’ motion to correct the title under section 105; and as so modified the order should be affirmed, with $20 costs and disbursements to plaintiffs-appellants.

Dore, J., Callahan and Heffeman, JJ., concur in Per Curiam opinion; Peek, P. J., and Cohn, J., dissent and vote to affirm.

Order modified by affirming the vacatur of the summons and complaint on the individuals named either individually or officially and by reversing that part of the order denying plaintiffs’ motion to correct the title under section 105 and the said motion granted and, as so modified, affirmed, with $20 costs and disbursements to appellants. Settle order on notice. [201 Mise. 989.] [See post, p. 914.]