Garfield v. Mackinney

7 Misc. 2d 93, 160 N.Y.S.2d 132, 1956 N.Y. Misc. LEXIS 1612

Opinion

Margaret Mary J. Mangan, J.

In the above-entitled action, after hearing, traverse overruled. The complaint accompanying the summons when served set forth the amount in suit. A reading of the summons and complaint showed jurisdiction in the court over the subject matter of the action. While the amount in suit was not on the face of the summons when served, the court finds that at the request of the defendant after service, the amount was inserted, the defendant thereby waiving and the plaintiff correcting the omission. (Rosenfeld v. Morales, 112 N. Y. S. 2d 211.) The plaintiff’s failure to conform the original with the copy thereof as corrected was clearly an oversight. (See decision on companion case Garfield v. Mackinney, 7 Misc 2d 94.) No disposition of defendant’s objection that section 227-a of the Civil Practice Act does not apply in sustaining the service.