Van Benthuysen v. Stevens

14 How. Pr. 70

• Court: New York Supreme Court
• Decided: October 15, 1856
• Status: Published

Opinion

Harris, Justice.

It was objected, upon the motion, that the papers served by mail, eleven days before the motion, could not be read. I was at first inclined to think the objection well taken : but I am satisfied that the defendant was entitled to use these papers in connection with the notice of the motion which had been personally served. When that notice was served, the papers were in the hands of the plaintiff’s attorney. They were none the worse for the fact that they had come to his possession through the post-office. It was enough that he had them. Nothing could be gained by delivering new copies. They might be used, not because they had been served by mail, but because, by some means, they had come into the hands of the plaintiff’s attorney, and were then in his possession.

But upon the merits, this motion must fail. This precise question was decided in Van Namee agt. Peoble, (9 How. Pr. R. 198.) Though there is a technical omission in the complaint, yet the defendant could not have been injured by it. Under such circumstances, the 176th section of the Code makes it the duty of the court to disregard the defect.

The motion is denied, with costs.