Davison v. Powell

New York Supreme Court

Davison v. Powell

13 How. Pr. 287

DecidedAugust 15, 1856

StatusPublished

This text of 13 How. Pr. 287 (Davison v. Powell) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davison v. Powell, 13 How. Pr. 287 (N.Y. Super. Ct. 1856).

Pincite

Opinion

Harris, Justice.

By the summons, the defendant was apprised that the complaint would be filed in the office of the clerk of the city of New-York. The third rule of the court requires all papers to be filed in the county specified in the complaint as the place of trial. The defendant, therefore, was distinctly informed, when served with the summons, that the plaintiff intended to locate the place of trial in the city of New-York. It is true, that the plaintiff is required by the 142d section of the Code to specify, in his complaint, the name of the county in which he desires the trial to be had. In this respect the complaint is defective. No county is named. But, as I understand the mandate contained in the 176th section of the Code, I am required to disregard this defect, if I see that it has not affected the substantial rights of the defendant. I should, therefore, be inclined to allow the complaint to be amended, as was done in Merrill agt. Grinnell, (10 How. 31,) but for the fact, that the motion should have been made in the city of New-York, For the reasons already stated, I think New-York was sufficiently indicated as the place of trial to require the defendant to make his motion there. -

The motion must, therefore, be denied, but without costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Harris, Justice.

By the summons, the defendant was apprised that the complaint would be filed in the office of the clerk of the city of New-York. The third rule of the court requires all papers to be filed in the county specified in the complaint as the place of trial. The defendant, therefore, was distinctly informed, when served with the summons, that the plaintiff intended to locate the place of trial in the city of New-York. It is true, that the plaintiff is required by the 142d section of the Code to specify, in his complaint, the name of the county in which he desires the trial to be had. In this respect the complaint is defective. No county is named. But, as I understand the mandate contained in the 176th section of the Code, I am required to disregard this defect, if I see that it has not affected the substantial rights of the defendant. I should, therefore, be inclined to allow the complaint to be amended, as was done in Merrill agt. Grinnell, (10 How. 31,) but for the fact, that the motion should have been made in the city of New-York, For the reasons already stated, I think New-York was sufficiently indicated as the place of trial to require the defendant to make his motion there. -

The motion must, therefore, be denied, but without costs.

Cite This Page — Counsel Stack

Bluebook (online)

13 How. Pr. 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davison-v-powell-nysupct-1856.

Opinion

Related

Cite This Page — Counsel Stack