
    GEORGE P. DELISSER, Appellant v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Respondent.
    
      Summons—Appeal from order selling aside the same and all proceedings therein.
    
    The summons in this action was duly served on defendant, but no com- . plaint was served with it. Defendant appeared for the sole purpose of moving, and did move, the court to set aside the service of the summons on the ground that this is an action to recover a penalty or forfeiture given by statute; that a copy of the complaint was not delivered to the defendant with the copy of the summons served, and that there was not ' indorsed upon the said copy of the summons a reference to the statute giving said penalty as required by section 1897 of the Code. The motion was founded upon the copy of the summons served and on an affidavit of one of the attorneys of the defendant, to the effect, that he is informed and believes that this action is to recover a penalty under the provisions of chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886.
    
      Held, that the only legal evidence of the contents and claims of a complaint is the complaint itself, and it is the only evidence of what is the object of the action. No amount of evidence as to the intent of an attorney or party can show the object of an action, for that intent cannot make the object, or if it be properly made, change it. While it is true that the affidavit was without effect inasmuch as it averred the object of the action upon information and belief without giving the source of information, it would have been defective if it had given the source and did not show what the complaint was, or the nature of some proceeding in the action which would legally determine its nature.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 4, 1891.
    Appeal from an order made at special term setting aside the summons in this action and all proceedings therein.
    
      Henry Wehle, attorney and of counsel, for appellant, on the question, considered, argued :—
    I. The motion is unauthorized by the Code. The summons was regularly served and is regular on its face. There is no provision in the Code nor any rule of practice which authorizes the setting aside of such process.
    II. The motion is unfounded in reason or necessity. The object of the endorsement, provided in § 1897 of the Code, is to apprise the defendant of the fact that the action is brought to recover a penalty under a certain statute. Prussia v. Guenther, 16 Abb. N. C. 230. The endorsement is not designed as an independent benefit for defendant. If he has notice the necessity of the endorsement ceases. Townsend v. Hopkins, 9 Civ. P. R. 257 ; Cox v. N. Y. Central R. R., 61 Barb. 615. The court below held that the affidavit submitted on this motion was sufficient to prove that the action was for a penalty; if that be so, then the condition of affairs as presented by the moving papers is, that of its own volition the defendant comes in court and declares that the object of the endorsement provided in § 1897 of the Code has been accomplished by means other than said endorsement; that the notice designed to be conveyed by the endorsement has been received by it.
    III. The affidavit is insufficient. The general rule of practice is that facts cannot be proven “ on information and belief ” unless reasons are assigned why the best evidence is not produced. The exception to this rule is that where a party seeks to institute proceedings or to obtain an order in aid of the process of the court, affidavits “ on information and belief ” are permitted; but in the case at bar it is sought to invalidate the process which is regular upon its face. The exception, therefore, does not apply. The better rule is not to admit the exception. Manken v. Pape, 65 How. 453.
    IV. The defendant has not proven that the summons is irregular. The affidavit contains no averment that the plaintiff has not another cause of action beside his claim for a penalty, for the prosecution of which the- summons in its present form can be used. The affidavit states “ that defendant’s attorney is informed and believes that this is an action to recover a penalty.” Assuming that plaintiff at the time of issuing the summons did intend to prosecute thereby his claim for a penalty, he would have a perfect right to alter his purpose and to prosecute by means of this summons any other cause of action which he may have. The defendant does not say that plaintiff’s claim for a penalty is the only cause of action which he has against defendant. Where an attempt is made to set aside a process of the court on the ground that facts not appearing on the face thereof make it irregular, it should be proven that no other circumstances exist which would make the summons regular. Defendant has to establish not only the fact that by reason of the penalty claim the summons was rendered irregular, it has also to negative the existence of any fact which would authorize the use of the summons in its present form ; and that defendant has not done in the affidavit. First Baptist Church v. N. & S. R. R., 6 Barb. 313.
    V. The defendant has mistaken its remedy. The practical effect of § 1897 of the Code is to prevent entry of judgment on default for a penalty, unless the summons contains the endorsement or the complaint is served with it. If a judgment had been entered on the summons in its present form, the judgment would have been irregular and defendant could have moved against it. To recover a penalty, the summons in its present condition is entirely unavailing. When plaintiff attempts to use it for this purpose, then and not before the defendant can invoke the court to prevent such a use. The right of the defendant to object to the summons is limited to its use to enforce a penalty; the order made by the court strikes out the summons entirely. The plaintiff may have any number of causes of action other than for penalties.
    
      Page & Taft, attorneys and of counsel, for respondent, on the questions considered, argued :—
    I. An action under the Act of 1857, as amended by the Act of 1886, is an action to recover a penalty or forfeiture given by a statute within the meaning of section 1897 of the Code. That section provides, as follows : “ In an action to recover a penalty or forfeiture, given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference - to the statute must be endorsed upon the copy of the summons so delivered, in the following form : ‘ According to the provisions of,’ etc., adding such a description of the statute as will identify it with convenient certainty, and also specifying the section, if penalties or forfeitures are given, in different sections thereof, for different acts or omissions.” In the case of Cox v. The New York Central Railroad Company, 61 Barb. 615, the question was before the court in an action similar to this one, upon, a motion to set aside the summons because it was not endorsed. Although on appeal the order of the special term setting aside the summons was reversed on the ground that the complaint was served with the summons, yet it was assumed by the general term that an action to recover such a penalty was an action in which an endorsement upon the summons was requisite, and reference is made to the case of Bissell v. The New York Central Railroad Company, a similar action, which was subsequently reported in 67 Barb., at page 385, and the court said: “ That case was properly decided, as there was no compliance whatever with the requirements of the statute when the action was commenced. No notice whatever was given to the defendant touching the nature and character of the action at the commencement thereof in that case.” In the Bissell case the motion was to set aside a judgment which had been entered in a suit which was commenced by the service of a summons only, without any endorsement. A motion had been made to set aside the -service of the summons on the ground that there was no endorsement upon it, and this motion was denied at special term, but, on appeal, the order of the special term was reversed, and an order entered setting aside the summons. The court at special term, upon the motion to set aside the judgment, said, at page 388, that it conclusively appeared that the general term in the Cox case “ held that the provisions of law requiring the endorsement of a summons by a reference to the statute giving the penalty in this class of actions must be complied with.” The decision of the special term in this case was affirmed at general term. See page 393. In Young v. Greg, 9 Civil Procedure Reports, 262, the court, in a case to recover a penalty, held that the omission to endorse the summons was irregular, and said, “ I am clearly of the opinion that the summons in this case is defective in not specifying the section in its reference to the statute of 1857, and because of this omission the justice got no jurisdiction of the person of the defendant.” See also on this general subject the following cases : People v. Bull, 10 Jones & Spencer, 19 ; Abbott v. The N. Y. Central, etc., R. R. Co., 1 Sheldon, 278; Avery & Lathrop v. Slack, 17 Wend. 85; Thayer, et al., etc., v. Lewis, 4 Den. 269 ; Andrews & Harkness v. Harrington, 19 Barb. 343; Marselis v. Seaman, 21 Ib. 319; Perry & Finehout v. Tynen, 22 Ib. 137 ; The Board of Commissioners of Saratoga County v. James Doherty, 16 How. Pr. 46; Cox v. N. Y. Central & Hudson River R. R. Co., 61 Barb. 615; Sprague v. Irwin, 27 How. Pr. 51; Sawyer & Briggs v. Schoonmaker, 8 Ib. 198; Prussia v. Guenther, 16 Abb. N. C. 234; Reed v. Loucks, 61 
      How. 436 ; Schoonmaker v. Brooks, 24 Hun, 553; Mayor v. Eisler, 2 C. P. Reps. 125; People v. Walters, 15 Abb. N. C. 461.
    II. The motion made was the proper way to raise the question. A similar motion was made in the Bissell case, and though it was denied by the special term, the order of the special term was reversed and the summons set aside by the general term.
    III. The allegation in the affidavit of Henry W. Taft, upon information and belief that the suit was for a penalty, was sufficient. In the nature of the case no one would have positive knowledge as to that fact except the plaintiff himself and his attorney. The defendant had no way to ascertain it except by serving a notice of appearance and demanding a copy of the complaint. This would be a general appearance and waiver of the objection raised upon the motion. The plaintiff could have made his own affidavit denying the allegation of Mr. Taft if it were not true. His omission to make such a denial should be considered as a practical admission of the facts alleged. Pratt v. Stevens, 94 N. Y. 387.
   By the Court.—Sedgwick, Ch. J.

I concur with Judge Freedman in the principle upon which he has proceeded in his opinion, but think there should be an absolute reversal. My ground for this view is, that the only legal evidence of the contents and claims of a complaint is the complaint itself, and it is the only, evidence of what is the object of the action. No amount of evidence as to the intent of an attorney or party can show the object of an action, for that intent cannot make the object, o.r if it be properly made, change it. The same remark is true in view of the provision that a judgment be taken by default when complaint is not served with the summons. The object of the action is then first ascertained by the proceedings upon application to the court.

While it is true that the affidavit was without effect inasmuch as it averred the object of the action upon information and belief without giving the source of information, I think it would have been defective if it did give the source and did not show what the complaint was, or the nature of some proceeding which would legally determine the nature of the action.

The authorities show that it is not too late for a defendant so situated to move as soon as the proceedings of the action show the object of the suit.

The order appealed from should be reversed with ten dollars costs, and the motion below denied with ten dollars costs.

McAdam, J., concurred.

Freedman, J.,

concurred, but held that the order of denial should contain leave to the defendant, upon payment of costs, to renew the motion upon further proof, in the following opinion :—

Freedman, J.

The summons having been served on the defendant, and no copy of the complaint having been served with it, the defendant appeared for the sole purpose of moving, and did move, to set aside the service of the summons on the ground that this is an action to recover a penalty or forfeiture given by a statute ; that a copy of the complaint was not delivered to the defendant with the copy of the summons served, and that there was not endorsed upon the said copy of the summons a reference to the statute giving said penalty as required by § 1897 of the Code.

The motion was founded on the copy of the summons served and on an affidavit of one of the attorneys of the defendant to the effect that he is informed and believes that this action is to recover a penalty under the provisions of chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886.

The defendant pursued the proper practice, and if the affidavit had sufficiently stated the sources of the information of the attorney and the grounds of his belief, the defendant would have been entitled to have the service of the summons set aside as prayed for. But the sources of such information and the grounds of such belief were not. disclosed. The affidavit contained nothing beyond the bare statement that the affiant was so informed and so believed. It, therefore, contained no competent evidence upon which the process of the court, which was regular upon its face, could be set aside, and the plaintiff was not. called upon to deny under oath something which had not been sufficiently shown.

Moreover, the order as made is too broad. It sets aside the summons in this action' and all proceedings therein.” It is only the service of the summons that can be set aside upon the presentation of the proper proof.

The order appealed from should be reversed with ten dollars costs and disbursements, and the motion in the court below denied with ten dollars costs, with leave to the defendant, upon payment of such costs, to renew the motion upon further proof.  