Edelbaum v. Lustig

City of New York Municipal Court

Edelbaum v. Lustig

140 Misc. 853, 250 N.Y.S. 560, 1928 N.Y. Misc. LEXIS 1271

DecidedFebruary 3, 1928

StatusPublished

This text of 140 Misc. 853 (Edelbaum v. Lustig) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Edelbaum v. Lustig, 140 Misc. 853, 250 N.Y.S. 560, 1928 N.Y. Misc. LEXIS 1271 (N.Y. Super. Ct. 1928).

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Opinion

Evans, J.

The defendant having consented that plaintiff’s default be opened, without costs, the original motion was argued. The motion is to vacate an order of arrest in an action for breach of promise of marriage. The ground for the motion is that a prior action is pending between the parties for the same cause. The action was commenced by the service of a summons. A notice of appearance, complaint and answer followed. Plaintiff also proceeded to arrest defendant. In that way defendant was [854]*854served with an order of arrest and the papers upon which it was based, which included the summons and complaint. So that defendant was served in all with two summonses and two complaints. The two summonses are identical. The two complaints are identical. The verification differs in the two complaints as to the time of verification and the notaries public who took it. Plaintiff shows that she did not intend two separate suits, but only one, and that all that happened was that defendant was served twice instead of once. Reading both complaints, no one would believe that these were two separate actions.

To clear the inadvertence, the summons, complaint, answer and order of arrest will stand and the service of the second summons and complaint will be vacated, so that the record may be perfectly clear that only one action is pending.

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Evans, J.

The defendant having consented that plaintiff’s default be opened, without costs, the original motion was argued. The motion is to vacate an order of arrest in an action for breach of promise of marriage. The ground for the motion is that a prior action is pending between the parties for the same cause. The action was commenced by the service of a summons. A notice of appearance, complaint and answer followed. Plaintiff also proceeded to arrest defendant. In that way defendant was [854]*854served with an order of arrest and the papers upon which it was based, which included the summons and complaint. So that defendant was served in all with two summonses and two complaints. The two summonses are identical. The two complaints are identical. The verification differs in the two complaints as to the time of verification and the notaries public who took it. Plaintiff shows that she did not intend two separate suits, but only one, and that all that happened was that defendant was served twice instead of once. Reading both complaints, no one would believe that these were two separate actions.

To clear the inadvertence, the summons, complaint, answer and order of arrest will stand and the service of the second summons and complaint will be vacated, so that the record may be perfectly clear that only one action is pending.

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Bluebook (online)

140 Misc. 853, 250 N.Y.S. 560, 1928 N.Y. Misc. LEXIS 1271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edelbaum-v-lustig-nynyccityct-1928.