Summary
In Tomlinson Bros. Ltd. v State of New York (15 AD2d 692 [3d Dept 1962], affg 26 Misc 2d 488 [Ct Cl 1961]), the Appellate Division Third Department held that the allegations of a notice of intention and claim are decisive and that the title or caption of the pleadings is not conclusive. Where there is no question as to who the real party defendant is and as to what the claim relates, a mere nominal irregularity should be disregarded (id. at 693).
Summary of this case from Goll v. StateOpinion
January 17, 1962
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ. [ 26 Misc.2d 488.]
Appeal from an order of the Court of Claims. The cause of action against the Thruway Authority based on a balance due on performance of a contract and on certain purported breaches involved in this appeal arose March 10, 1956. On August 7, 1956 claimant served a notice of intention to file a claim on the Clerk of the Court of Claims, the Attorney-General and the Thruway Authority. On February 26, 1957 the claim itself was served on the Clerk of the Court of Claims, the Attorney-General, and the Thruway Authority. Both the notice of intention and the claim made it perfectly clear that the action was based on a contract between claimant and the Thruway Authority. But the caption on the notice and on the claim named the State of New York as defendant. The Court of Claims has held that this was a substantial compliance with the statutory provisions governing claims against the Thruway Authority in the Court of Claims, and, vacating a prior order of dismissal, allowed an amendment to the title of the claim adding the New York State Thruway Authority as a defendant. The Thruway Authority had adequate notice that a claim was being pursued against it under its contract. The notice and the claim which named the Thruway's sovereign superior, the State of New York, rather than the Thruway in the notice and in the caption of claim, constitute a substantial compliance with the statutory requirements. The orders of the Court of Claims are consistent with the policy of the Court of Claims Act and of the Civil Practice Act to disregard immaterial descriptive error. The mere nominal irregularity here involved should be disregarded. There was an adequate, as well as a substantial, compliance with the statute. (Cf. Chalmers Son v. State of New York, 271 App. Div. 699 [HEFFERNAN, J.], affd. 297 N.Y. 690.) Decision in such cases as Fischer v. Wabash Ry. Co. ( 235 N.Y. 568) upon which appellants rely are not in point and are not controlling. Recourse to the record on appeal in Fischer, for example, discloses that no mention of the proper party was made either in the title of the action, in the summons and complaint, or in the body of the complaint. Whether or not the amendment is "nunc pro tunc" is not important in this case. We hold that the papers just the way they were served and at the time they were served constituted substantial compliance with the statute and the error in form could be corrected at any stage of the action. Orders unanimously affirmed, with costs.