Page images









Mistakes, omissions, defects, and irregularitiea.
Bzo. 721. Defects cured by verdict, etc., and by judgment.

722. Such defects to be suppiled.
723. Amendraents by the court; disregarding Immaterial errors, sto.
724. Belief against omissions, etc.; amendments to conform pro

725. Returns by officers, etc.
726. Papers lost or withheld; how supplied.
771. Order of court; when necessary to amend.
728. Disregarding defects in afidavits.
729. Certain bonds, etc., when suficient.
730. Amending defects in bonds, etc.

$ 721. [Amended, 1879.] Defects cured by ver. dict, etc., and by judgment. — In a court of record, where a verdict, report or decision has been rendered, the judgment shall not be stayed, nor shall any judg. ment of a court of record be impaired or affected, by reason of either of the following imperfections, omis. sions, defects, matters, or things, in the process, plead. ings or other proceedings :

1. For want of a summons, or other writ.

2. For any fault or defect in process; or for miscon. ceiving & process, or awarding it to & wrong officer.

3. For an imperfect or insufficient return of a sheriff or other officer; or because an officer has not subscribed & return, actually made by him

4. For a variance between the summons and com. plaint,

5. For a mispleading, insufficient pleading, or jeofail. 6. For want of a warrant of attorney by either party.

7. For the appearance, by attorney, of an infant party, if the verdict, report, or decision, or the judg. ment, is in his favor.

8. For omitting to allege any matter, without proof of which the verdict, report, or decision ought not to have been rendered.

9 For a mistake in the name of a party or other person; or in a sum of money; or in the description of property; or in reciting or stating a day, month, or year; where the correct name, sum, description, or date has been once rightly stated, in any of the pleadince or other proceedings.

10. For a mistake in the name of a juror or oficer.

11. For an informality in entering judgment, or mak. ing up the judgment-roil.

12. For an omission on the part of a referee to be sworn ; or for any other default or negligence of the

lerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has Got been prejudiced. See 21 Jun, 429. 26 2. 19A, 425, 87 (2 Eim. 442, 443), am’d.

$ 722. Such defects to be supplied. -- Each of the omissions, imperfections, defects, and variances, speci. fied in the last section, and any other of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or the trial, must, when necessary, be supplied, and the proceeding amended, by the court wherein the judgment is ren. dered, or by an appellate court, Id., 8. $723. (Amended, 1877.] Amendments by the court; disregarding immaterial errors, etc.

- The court may, upon the trial, or at any other stage of the action, be fore or after judgment, in furtherance of justice, and on

such terms as it deems just, amend any process, plead ing, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceeding to the facts proved. And, in every stage of the action, the court must disregard an error oz defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party.

Co. Proc., & 173, and the first clause of 176; the second clause of the latter section being included in 721, ante.

8 724. Relief against omissions, etc.; amendments to conform proceedings. The court may likewise, in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supply an omis don in any proceeding. Where a proceeding, taken by

party, fails to conform to a provision of this act, tho court may, in like manner, and upon like terms, permit an amendment thereof, to conform it to the provision.

Id., 174, am'd. See 84 781, 783, and 784, post. Depew v. Dewey, IT. & c. 618; Simpson v. McKay, 3 id. 65; 'Gambling v. Halght, 68 N. I. 623; Favcett v. Vary, 19 id. 597 ; Fields v. Van Cott, 15 Abb. N. 8. 249; Hamilton v. Third Ave, Ry. Co.,

44 How. 294; Baldwin o, N. Y. & Har. Nav. Co., 4 Daly, 314; Risley v. Phænix Bank, 2 Hun, 349; Cook o. Wbipple, 6 N. Y. 150; Mott o. Lansing, 5 Lans. 316; Buckingham .. Dickinson, 34 N. Y. 682; Security Bank v. Bank of Com., 4 T. &0. 618; Jellinghaus v. N. Ins. Co., 5 Bosw. 678; Pettigrew v. Mayor, 17 How. 192; Macombe v. Mayor, 17 Abb. 36; Baldwin o. Kimmell, 16 ld. 356; Bebee o. Roberts, 3 E. D. Smith, 195:

Peoplo v. Powers, 19 Abb. 998 Bmith v. Jobnson, 30 How. 374; Fish . Ferris, 3 E. D. Smith, 568; Foley 1. Alger, 4 id. 719; Onderdonk 0. Ranlett, 3 HARI, 323; People e. Connty Judgee, 13 How. 377.

$ 726. Returns by officers, etc. - A court, to which a return is made by a sheriff or other officer, or by a gebordinate court or other tribunal, may, in its discre. tion, direct the return to be amended, in matter of form. eithor before or after judgment.

3B. & 124 (3 Edm. 112). See Temporary Act, 16, subd. 8. $726. Papers lost or withheld; how supplied. Weoro en original pleading or paper is lost, or with


bold by any person, the court may authorize a copy to be filed and used, instead of the original. Co. Procug 122. See Temporary Act, 85, subd. 6.

8 727. Order of court; when necessary to amendoA process, ploading, or record, shall not be altered, by the clerk or any other officer of the court, or by any other person, without the direction of the court, or of another court of competent authority; except in a case where a party, or his attorney, is specially anthorized by law to amend a pleading.

3R. &. 425 (2 Edim. 443), am'd. See Temporary Act, 26, subd. 6. 8 728. Disregarding defects in affidavits.--The want of a title, or a defect in the title, of an affidavit, does not impair it, if it intelligibly refers to the action or special proceeding, in which it is made. Co. Proc., & 106. See Temporary Act, & 5, subd. 6.

$ 729. Certain bonds, etc., when sufficient. A bond or undertaking, required by statute to be given by a person, to entitie him to a right or privilege, or to tako & proceeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit, it is given. 2 B. 8. 566 (Edm. 676), am'd. Bee Temporary Act, 85, subd. Gi

8.730. Amending defects in bonds, eto. Where such a bond or undertaking is defective, the court, offi. cer, or body, that would be authorized to receive it, or to entertain a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who execated it, amend it accordingly; and it shall thera upon be valid, from the time of its execution.

Id., & 34, am'd. See Temporary Act, 86, subd ..


Tender, and other offers and requests to the aduera

party. Bao m. Tonder ander suit.

TW. Amount to be paid into court

to. 733. Effect of suficient tender.

734. When to be deducted from recovery, etc.
735. Requiring admissions of genuineness of paper.
736. Offer to liquidate damages conditionally.
737. Effect of refusal of offer.
738. Defendant's offer to compromise; proceedings theroon.
739. Plaintiff's offer to compromise counterclaim; proceeding

thereon. 740. Offer and acceptance, by whom subscribed. $731. Tender after suit. - Where the complaint demands judgment for a sum of money only; and the action is brought to recover & sum certain, or which may be reduced to certainty by calculation; or to recover damages for a casual or involuntary personal injury, or a like injury to property ; the defendant, or his attorney, may, at any time before the trial, tender to the plaintit, or his attorney, such a sum of money, as he conceives to be suficient to make amends for the injury, or to pay the plaintiff's demand; together with the costs of the action, to that time. ?R. 8.6553, & 20 (2 Edm. 574), am'd. Duffy o. O'Donovan, 46 N. Y.

$ 732. (Amended, 1877.] Amount to be paid into pourta A tender, made as prescribed in the last section, does not avail the defendant, unless the money is 8Ccopted, or is paid into court, and notice thereof in writ ing served upon the plaintiff's attorney before the trial and within ten days after the tender. If the plaintif takes out the amount paid in, he accepts the tender. New. Becker v. Boon, 61 N. Y. 317; Brown v. Ferguson, 2 Donio, IN: Slack o. Brown, 13 Wend. 394.

$ 733. Effect of sufficient tender. If it appeare, upon the trial, that the sum so tendered was sufficient to pay the plaintiff's demand, or to make amends for the injury, and also to pay the costs of the action, to the time of the tender, the plaintiff cannot recover costs or interest, from the time of the tender, but must pay the detendant's costs from that time.

B. 8. 684, & 21 and 22 (2 Edm. 574), consolidated. Ses Co. Proo., 68; post, 2738.

$734. When to be deducted from recovery, eto.I the plaintiff proceeds in the action, after accepting the tender, the sum accepted must be deducted from the recovery, and judgment rendered for the residuo, if any; and, if the tender and acceptance do not appear in tho pleadingo, a memorandum thereof must be annexed to the judgment-roll. The plaintiff , right to record

« PreviousContinue »