The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-01-17
Court or Common Pleas.
IN CHAMBERS.
Refnra Tia Hon Iud1a Wa0druH


JAN, l3.-bERsIcE or bumMors UNDER THE CODE
Oscar r Keeer rs. Pierre r. Bens.-rhs summons in
stead OF having therein inserted notice spprsag tho
defs ndsnt where the complaint would be filed re-
defendant by the terms OF the summons required
TO answer complaint thereto annexed, when In fact,
no copy ~ss annexed This clearly an irrsgularity
In the summons but not such error In my judg
ment, would render the summons served q nullity
The paper served fully spprised the defendant that
suit was commenced in this court that Oscar f.
Keeer was the party complaining that answer
from the defendant required to be served the
plaintiffs attorneys within twenty days and that the
80 Nassau street, New York. / cannot regard such
paper as q nullity 1t was summons although . de-
fctve IL should either have notified the deien
where the complaint which be required to answer
would be filed or 1t should have been panied by
the complaint. Where the complaint Ia not served
with the summons, the code requires . summons to
az pear and and something more, via: q sum
mons with notice therein OF tne place whsrs tne
therefore although defect does not render the paper
served no summons. IL the defect can be remedied
without doing and especially II no injury has
been occasioned by the omission 1t Is the duty OF the
court to disregard it, allow amendment Ii the
be determined solely those sections
Of the statute which prescribe what shs be inserted
In a summons, ehould hesitate in holding that any
paper is 4 summons which does not In all things con-
form to their directions But then it might well
be said that the direction to notify the defendant
whore the complaint would be filed is directory In
such senee that the summons is complete in all the
indispensable requisites to constitute summons In
the proper meaning Of that term, without the add
t1Onal notice, AtnOuBn NOT VOlu buI
under the subsequent provisions Of the code author
izDg the court to amend any or to disrs
gard any defects not affecting the substantial rights OF
the party 1t does not appear to me doubtful that the
omission may be supplied SO far from doing tnJustce
in this case by allowing an amendment, 1t would
rather be unjust to refuse It, when the defendant has
In manner been nised deprived Of any defence
which would have availed him II the summons had
been in all respects regular and the plaintiff Will be
detected by the statute Of limitations which has now
barred q suit The same views dispose OF the
objection that copy Of the order to arrest was served
the afidavits think the preponderance OF evidence
Is that such copy not served But this omission
may clearly be supplied The defendant, having now
been served with copy Of the complaint may II he
ngs and discharge the bail given to the Sheriff unless
the plaintiff serve copy OF the order OF arrest upon
the attorney and pay $40 for the costs OF
this motion within ten days. and giving the defendant
twenty days from this time to answer the complaint
served.
Before the Hon Judge Ingrahsm.
JAN. 13-Hatoiey c. Olmstead, assignee &c, rs. SIN
D. HeTick Sc.This was action OF replevin, brought
by the assignee Of Harrison 0lnstead against judy
ment creditor to certain goods levied upon by
the creditor after the execution OF the assignment
On the trial Messrs Lu &nd Stoughton for the plain
t introduced assignment prsferring certain credi
tors Of Harrison Omstead, which contained clause
that the assignee should only be responsible for his
groes neglect or wilful misfeAsance." Mr.. McMahon
for the defendant objected to the assignment the
clause lighter degree Of upon the assignee than
the law imposed upon him. After considerable dis
cussion by the respective counsel the Court agreed
with Mr. Mcmahon and non. suited the plaintiff.
I'VE understand that this is . new and very impor-
tant point, and which will render invalid many as
signmente heretofore considered good since most OF
the assignments heretofore drawn have contained the
clause in question