Hart v. Small

4 Paige Ch. 288, 1834 N.Y. LEXIS 324, 1834 N.Y. Misc. LEXIS 64

• Court: New York Court of Chancery
• Decided: January 7, 1834
• Status: Published

Opinion

The Chancellor,

said there was a technical irregularity in the summons; and that if the defendant had been prejudiced by it, he must now have an opportunity to except to the report of the master, in the same manner as he might have done if he had appeared and argued the exceptions to the answer before the master. That if the defendant’s only object was to set aside the proceedings on the ground of the technical irregularity, he should have applied to the court the first opportunity; or should have appeared before the master and made the objection, as soon as he had notice of the irregularity by the service of the summons. That the court would not encourage motions which were founded upon technical irregularities merely, and which could be of no substantial benefit to the parties. That if the solicitor, after notice of an irregularity, takes any step in the cause, or lies by and suffers his adversary to proceed therein under a belief that he is proceeding regularly, the court will not interfere to correct the irregularity if it is merely technical.