Lucas v. Trustees of the 2D Baptist Church

4 How. Pr. 353

• Court: New York Supreme Court
• Decided: September 15, 1847
• Status: Published

Opinion

Hoyt, Justice.

The papers and notice of motion were served on the 6th of August last. At that time it could hardly be expected that the profession could have learned that a rule had been adopted that such motions could be heard at general terms, as the rules at that time had not been published. The motion is not to set aside the judgment for a mere technical irregularity, but if the defendants have been irregular, they would not now be entitled to the judgment they have perfected. It is not a case in which the plaintiff would be bound to move the first possible opportunity. I think the plaintiff is not guilty of laches in not moving earlier.

The second objection is not well founded. The presumption is that the deputy clerk has done his duty, and that the clerk was absent when the certificate was made. The court will not presume that the deputy has violated his duty.

The third objection is equally untenable. A slight variance in the original and copies of papers served, not calculated to mislead, will not avoid. The defendants in this case could not have been prejudiced or misled by the omission of the letters L. S. in the copy of the papers served.

But as to the merits of the motion; I am satisfied that the summons was against the corporation, by its proper corporate name, and precisely as it is described in the original certificate of incorporation. But the declaration on its face is not against the corporation by its proper corporate name; and there is no reference in it to a suit having been commenced by summons. On its face it purports to have been prepared for the original commencement of the suit, “ by declaration and notice according to the Bevised Statutes, <&c.” clearly intimating or averring that the suit was commenced by declaration. If it was designed to have been against the corporation, it should not have proceeded against the trustees by name, but should have used the corporate name as set forth in the summons. There was no necessity for serving a copy of declaration in a suit commenced by summons, on each of the individual trustees; and it was not necessary, but improper to name them in the declaration. I think the defendants’ attorney was correct in regarding the addition of the words “trustees, &c.” to the names of Edward Johnson and the others, as a mere descriptio personarum. (6 Hill, 240; 24 Wend. 345; 9 J. R. 334; 8 Cow. R. 31.)

The defendants had a right to treat the proceedings by declaration as a separate and distinct suit from the one mentioned in the summons. The proceedings of the defendants have therefore been regular.

The motion must be denied, with $10 costs of opposing.

Note.—This case should have been reported before, but by accident got mislaid. Most of the points in it, however, are of general and practical application under the present, as well as the former system of practice.