Jacquerson v. Van Erben , 2 Abb. Pr. 315 ( 1855 )

Mitchell, J.

On the appeal the only objection made by the defendant to the judgment is, that (the action being against tlie defendants as non-residents) the complaint was filed on September 22, 1854, and the summons published and dated on September 23, 1854, stated that the complaint “ has this day been filed in the office of the clerk of the city and county of New York.” The Code (§ 135) requires the complaint to be first filed in cases of publication, and that the summons must state the time and place of filing. It does not say that it shall state the day nor the hour, nor the part of the clerk’s office in which it was filed, but the time and place. The place is sufficiently stated when the office of the clerk of the county is mentioned, and if it should add, with the deputy clerk, or the chambers clerk, or special term clerk, and there should be an error in this, it would not make the judgment irregular. As it would be an error in a matter not required by the statute, and would not mislead, it would not therefore be allowed to have any effect. So, if the month of filing be stated, that is enough to comply with the statute, and an error in stating the day does not make void the judgment. If the defendant was misled by it, he could have relief on the merits. Here the complaint was on file on the twenty-third, the day mentioned, although it was filed, in fact, on the twenty-second. The Code was sufficiently complied with, and the order refusing to vacate the judgment should be affirmed with costs.