Williams v. Sholto

concurring.) — Where the object and intent of a pleading are certainly known to the attorney upon whom it is served, as they must have been in this case, he has no right to treat it as a nullity, merely upon the ground that it is wrongly entitled, or is otherwise defective in form. If he is unwilling to accept it in its actual form, he must return it so as to give to the opposite attorney the opportunity of correcting the mistake • but if he retains it and gives no notice of the de,fect, he is to be considered as waiving the.objection, and eleet*642ing to consider it as properly amended. These just and reasonable rules were established by the supreme court under the former more technical system of practice, and there is no pre text for saying that they are inconsistent with the provisions of the code. On the contrary, they are exactly such as a just regard to the intent and spirit of the code should compel us to adopt. (City of Buffalo v. Scranton, 20 Wend. 676; Wirts v. Norton, 25 Ibid. 699; Platner v. Johnson, 3 Hill, 476.)

The motion is granted with costs.(a)