Opinion
November 18, 1916.
Otto H. Droege, for the appellant.
James M. Gorman [ Charles H. Schwartzman with him on the brief], for the respondent.
By the recitals in the order appealed from, it appears that it was granted upon an affidavit of plaintiff's attorney, the notice of motion, "and upon all the pleadings and proceedings had herein." The record does not contain a copy of that affidavit or of any of the pleadings, but it appears from the order that the motion was in part to amend the summons and complaint, and, therefore, at least the original summons and complaint must have been before the court upon the motion, whether specified in the notice therefor or not. I think that the recital of all the proceedings had herein should be regarded as limited to those proceedings which were recited in the moving affidavit; and that anyway the error, if any, in including in the order that recital should be here considered as merely technical and of no possible harm to the appellant.
There is nothing in the record to show that there was any other pleading than the compliant, and from the very nature of the motion that must have been before the court. It is true, as stated by the appellant's counsel, that the Appellate Division in the First Department, in Southack v. Southack ( 61 App. Div. 105) held that such a recital should be stricken out of the order, and that the motion to resettle the order in that respect should have been granted, and reversed the order denying such motion. In the report of that case, however, it does not appear that the motion was such as to necessarily bring before the court the pleadings.
I recommend, therefore, that the order be affirmed, with ten dollars costs and disbursements.
JENKS, P.J., THOMAS, STAPLETON and PUTNAM, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.