Ryers against Hillyer

Ryers against Hillyer. If a notice of motion for nonsuit be titled versus instead of ad sectum, and the affidavit annexed rightly titled, the notice will be good. Spencee moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial. Hoffman resisted the application, because the notice was entitled William Hillyer against Joyn P. Byers, instead of William Hillyer ad sect. John P. Byers; this, he said, was fatal, there being no such suit in existence as the one in which the notice was given, but he added, he would not have urged it except from its being one of Mr. Golden's causes, whose state of health the whole court knew. Spencer, contra, observed, that there could be np force in the objection, unless it appeared that the party had [*113] been *misled. The notice was for judgment as in case of nonsuit for not proceeding to trial, therefore, it must have come from a defendant. In the next place, it was an affidavit, a copy whereof was annexed, and that affidavit was rightly entitled. It is a mere question of who shall pay costs. There has been no countermand, and the defendant kept all the circuit with his witnesses. Hoffman. As this is the first default, will the court oblige us to stipulate ? This is the true principle. Therefore, where the Christian name of a plaintiff was “Teunis,” and the notice “Jeunis,” as there was no other suit against the defendant by a person of the same surname as the plaintiff, the variance was deemed immaterial. Quick v. Merritt, 3 Caines’ Rep. 133. So a notice to quit, styling the premises “ The Waterman’s arms,” was held good, though the sign of the house was “The Bricklayer’s arms,” the defendant holding no other house of the plaintiff, and there being no such sign as “The Waterman’s aims ” in the parish. Doe ex dem. v. Cox et al. v. 4 Esp. Rep. 185. See post, 344. On the same principle where a notice of executing a writ of inquiry “ on Tuesday the 14th of January inst.” was given, the court of 0. B. refused to set aside the execution of the writ, because the 14th was on a Thursday, saying it was clear the defendant could not have been misled. Batten v. Harrison, 3 Bos. & Pull 1. [MAJORITY — Per Curiam.] Per Curiam. Stipulate to try at the next circuit for the city and county of New-York, and pay the costs of the present application. On stipulating, and paying costs, Motioned denied. Radcliff and Livingston, justices, absent.