Cornell v. Bennett

11 Barb. 657, 1852 N.Y. App. Div. LEXIS 20

• Court: New York Supreme Court
• Decided: September 6, 1852
• Status: Published

Opinion

By the Court,

T. R. Strong, J.

The contents of a summons for the commencement of a suit before a justice of the peace, are prescribed by 2 R. S. 228, § 14. It must require that the defendant be summoned “ to answer the plaintiff, in the plea in the same summons to be mentioned.” Before the code, it was the practice to designate the plea in the summons, by simply stating a form of action, as “trespass,” or “trespass on the case;” but as all forms of action are abolished by the code, § 69, and § 64, sub. 15, it must now be done in some other manner. It would doubtless be a sufficient designation, to state briefly and generally, in any form, the nature of the claim alledged by the plaintiff. I do not think the provision that the plea must be mentioned, is repealed by the abolition of the forms of actions; the existence of such forms is not at all necessary to a compliance with it. But I am satisfied that an omission to comply with the provision, is no cause for reversing a judgment. The defect is a mere technical and formal one, in no way prejudicial to the substantial rights of a defendant. When it is made the subject of objection before the justice, he should amend the process, which he has ample power to do. (Brace v. Benson, 10 Wend. 213. Near v. Van Alstyne, 14 Id. 230. Arnold v. Maltby, 4 .) But if he overrules the objection, without amendment, and gives judgment for the plaintiff, it can not be reversed on account of that defect. By § 366 of the code, upon the hearing of an appeal from the judgment of a justice, “ the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits.” Under this provision, defects like that in question must be overlooked. (See also 2. R. S. 424, 5, § 7; Bowen v. Ferne, 16 John. 161; Cowen’s Treatise, 2d ed. 458; 1 R. L. of 1813, 387, § 2; Laws of 1824, p. 280, § 2.)

[Monroe General Term, September 6, 1852.

Selden, Johnson and T. R. Strong, Justices.]

The return of the justice sufficiently shows, independent of the direct statement therein to that effect, that the defendant was present at the trial. A person of the same name was sworn as a witness, on the part of the plaintiffs, and testified “ that the hand-writing of the note was his.” The fair inference is that he was the defendant. (Cowen & Hill’s Notes 1301, and cases cited.) And if the defendant Avas present, the case of Barber v. Parker, (11 Wend. 51,) is directly in point, that the judgment of the justice was not erroneous, because the justice did not appear at the place appointed for the trial, until after the expiration of one hour from the time specified in the summons. It is true that more time had elapsed, after the hour, in this case, when the suit Avas called, than in that cited; hut I think the doctrine of that case may properly be held to embrace this. The defendant willfully abandoned the suit. He should have answered when it was called, and if an adjournment was essential, applied for it. (See also Baldwin v. Carter, 15 John. 496; Wilcox v. Clement, 4 Denio, 160.)

The judgment of the county court must he reversed, and that of the justice affirmed.