4 E.D. Smith 463
New York Court of Common Pleas
Decided December 15, 1855
New York Court of Common Pleas · decided 1855-12-15
This action was commenced in the Marine Court. The summons was in form “ for a money demand on contract.” The complaint charged the defendant with a wrongful taking and detention of personal property, and upon the latter cause of action the court below gave judgment. The defendant pleaded to the merits; and afterwards, without withdrawing his answer, moved to dismiss the complaint, upon the ground of variance from the cause of action stated in the summons.
Decided 1855-12-15
¶1By the Court.
¶2It was too late, after an answer to the merits, to object that there was a variance between the summons and the complaint. That variance was a matter to be urged as ground of objection to the complaint, (as an abatement of the court,) and such matters are waived by pleading to the merits.
¶3Judgment affirmed.