
    Emmet Rusk vs. George Van Benschoten, imp’d with Theodore Caine.
    The court do not inquire into parts of day on filing and service of a declaration. Service before filing on the same day held good.
    
      Motion by defendant Van Benschoten to set aside judgment and execution in this cause, so far as relates to property of Van Benschoten.—The defendants were partners in business in the city of New York. On the morning of the 24th January last, declaration was served on defendant Caine, who thereupon gave a cognovit for the amount of plaintiff’s claim against defendants, with a consent that execution might issue forthwith. On the same day, and at the same time a declaration was filed, judgment was entered up, filed and docketed, and execution issued and levy made upon the joint property of both defendants. The declaration was served before it was filed; but the service and filing occurred on the same day. The main question was, whether the suit could be said to have been commenced in this way.
    N. B. Blunt, Hefts Counsel. A. L. Brown, Hefts Atty.
    
    N. Hill Jr., Plffs Counsel. A. U. Lyon, Plffs Atty.
    
   Bronson, Chief Justice.

Said they did not inquire into the parts of a day on service and filing a declaration. The motion must be denied.

Rule accordingly.  