Bailey v. Sargent Granite Co.

Superior Court of New York

Bailey v. Sargent Granite Co.

29 N.Y.S. 1105, 23 N.Y. Civ. Proc. R. 319

CourtThe Superior Court of the City of New York and Buffalo

DecidedApril 3, 1893

StatusPublished

This text of 29 N.Y.S. 1105 (Bailey v. Sargent Granite Co.) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. Sargent Granite Co., 29 N.Y.S. 1105, 23 N.Y. Civ. Proc. R. 319 (superctny 1893).

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Opinion

McADAM, J.

A civil action is commenced by the service of a summons. Code Civ. Proc. § 416. The summons served was entitled in the “N. Y. Common Pleas,” and the action was thereby effectually commenced in that court, and is pending there now. The fact that the original summons was entitled in the “N. Y. Superior Court” is of no consequence, as the plaintiff is bound by the process served. 2 Wait, Pr. 302; Trowbridge v. Didier, 4 Duer, 448. A defect in the copy is not cured by showing that the original was correct. Id. A party may always treat a paper served upon him as a true copy of the original, and act accordingly. The fact that some of the subsequent papers were served by the plaintiff’s attorney entitled in this court does not alter the fact that the action is pending in another court. Williams v. Sholto, 4 Sandf. 641. Motion to declare the action pending in this court or to consolidate denied, without costs. A discontinuance here is unnecessary, as this court has no jurisdiction in the premises, and, technically speaking, nothing to do with the action.

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McADAM, J.

A civil action is commenced by the service of a summons. Code Civ. Proc. § 416. The summons served was entitled in the “N. Y. Common Pleas,” and the action was thereby effectually commenced in that court, and is pending there now. The fact that the original summons was entitled in the “N. Y. Superior Court” is of no consequence, as the plaintiff is bound by the process served. 2 Wait, Pr. 302; Trowbridge v. Didier, 4 Duer, 448. A defect in the copy is not cured by showing that the original was correct. Id. A party may always treat a paper served upon him as a true copy of the original, and act accordingly. The fact that some of the subsequent papers were served by the plaintiff’s attorney entitled in this court does not alter the fact that the action is pending in another court. Williams v. Sholto, 4 Sandf. 641. Motion to declare the action pending in this court or to consolidate denied, without costs. A discontinuance here is unnecessary, as this court has no jurisdiction in the premises, and, technically speaking, nothing to do with the action.

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Bluebook (online)

29 N.Y.S. 1105, 23 N.Y. Civ. Proc. R. 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-sargent-granite-co-superctny-1893.