Grant v. Birdsall

16 Jones & S. 427

• Court: The Superior Court of New York City
• Decided: December 4, 1882
• Status: Published

Opinion

By the Court.—Freedman, J.

This is an appeal from an order entered in April, 1882, refusing to vacate the judgment entered in this action against the defendant for want of an answer, April 4,1863, for $349.10, and directing the defendant to appear on a certain day and submit to an examination concerning his property, pursuant to an order made October 13, 1881. The motion to vacate the judgment was made after a lapse of eighteen years, upon the ground that in the summons and complaint the Christian names of both the plaintiff and the defendant had been designated only by their initial letters. It was not denied that the moving defendant was the proper party, nor was it denied that he had been served with the summons and complaint. Moreover, it appeared that the defendant, who is a lawyer, had adopted “ W. T. Birdsall” as his name in indorsing the note upon which he was sued ; that in 1875 he had appeared in obedience to an order made in proceedings supplementary to execution ; had obtained and signed several adjournments; and that the last of the adjournments had been obtained in consequence of his promise to pay the judgment. Nor was there any question as to the identity of the plaintiff. Under these circumstances there were no merits in the motion, unless the defect complained of is a jurisdictional one. In my judgment it constituted a mere irregularity, which has been waived. But even without a waiver, the court below would have been bound, under our system of practice in civil actions and proceedings, to disregard it as not affecting a substantial right, though a different rule may prevail as to indictments.

The motion to vacate the proceedings supplementary to execution instituted pursuant to the order of October 13, 1881, was made on the additional ground of the death of the plaintiff before the date of said order and the cessation of his attorney’s authority in consequence thereof. On the hearing of the motion, the proofs adduced by the defendant in support of this claim were not convincing, and the fact claimed to exist was denied by the attorney who had commenced the proceedings. The direction requiring the defendant to appear on a future day was therefore proper enough, as the case then stood. If the defendant can now show, as it seems he can, additional facts which clearly establish the death of the plaintiff before October 13, 1881, he may, upon proper papers, apply at special term for leave to reargue that branch of his motion.

The order appealed from should be affirmed, with costs.

Sedgwick, Ch. J., concurred.