Mayerson v. Cohen

Miller, J.: The plaintiff appeals from a judgment of • the Municipal Court . dismissing the complaint on. the ground of a defect in'the copy of the summons served on the defendant.,, the alleged defect being the pmission of the date of the summons. Indorsed on the original summons is an affidavit of service to the effect that a true copy of the original was delivered. While a copy of a summons, blank as to date of issuance, is found among the papers on this appeal, the record fails to show -that there was any proof offered that Said alleged copy was the paper served on the defendant, and there is nothing whatever to show that the return of the. officer making service was in any manner traversed. The return, unless traversed, liad to be accepted as conclusive. (Caldwell v. De Korven, 32 Misc. Rep. 725; 66 N. Y. Supp. 309.) Moreover, if it had been proven that the alleged copy of the summons found in the return to this court was the paper served on the defendant, still the omission of the date was merely á clerical error, and the defendant ivas in no way prejudiced’thereby. The return day. was distinctly stated therein ; and it has been held that even a defect in that respect was not jurisdictional. (Lenham Mercantile Co. v. Herke, 55 Misc. Rep. 310; 105 N. Y. Supp. 472.) The original summons was properly filled in as required by sections 27 and 28 of the Municipal Court. Act (Laws of 1902, chap. 580). It was itade returnable not more than twelve days from its date, and was served six days before the return day as required by section 37 of the Municipal Court Act.' We think, it- being plain that the omission in the copy complained of was not jurisdictional, the justice should not dismiss where the defendant was not and could not have been in any way misled or prejudiced. The .judgment should be reversed, ■ Woodward,. Jenks, Hooker and Gayko r, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs' to abide the event.