Opinion
October, 1906.
Louis Marshall, for defendant Valois, and motion.
Davies, Stone Auerbach (Julien T. Davies, of counsel), for defendant Thomas W. Evans Museum and Institute Society, opposed.
J. Noble Hayes, for defendants Enos et al., opposed.
Coudert Brothers (Frederick R. Coudert, of counsel), for defendants W.W. Evans et al., opposed.
John Vernon Bouvier, Jr., for defendant City of Philadelphia, opposed.
George W. Elkins, for defendant Julius M. Mayer, as Attorney-General of the State of New York, opposed.
This motion to vacate an order for the examination before trial of the defendant Valois presents for the most part the same questions that are presented on the motion for an inspection and discovery, herewith decided, and should be denied for the same reasons as are set forth in the memorandum handed down on that application and herewith published.
The order directs the said defendant to appear before a referee in Watkins, Schuyler county, but, through a stenographic error, the county of New York, instead of the county of Schuyler, was designated as the place to which adjournments might be taken.
The provision relating to adjournments is easily separable from the rest of the order, and hence may be expunged without affecting the full compliance of the order with the provisions of the Code of Civil Procedure.
Ample authority for such course is found in sections 723 and 724 of the Code of Civil Procedure. The former, among other things, authorizes the court to correct a mistake in the name of a party, or a mistake in any other respect, and directs that, in every stage of the action, an error or defect in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party, must be disregarded. The latter provides that, where a proceeding fails to conform to the provisions of the Code, the court may remedy the error by amendment.
An error of a character similar to the one in the present case was the subject of decision in Boynton v. Sprague, 100 A.D. 443. There it appeared that the order appointing a receiver in supplementary proceedings erroneously provided that the receiver's bond should be filed with the clerk of the county of New York, instead of with the clerk of the City Court of New York, where the bond was actually filed. The receiver having brought an action, and the error having come to light, he was allowed to amend the order nunc pro tunc; and in affirming the order the court said (p. 448): "We think that, under section 723 of the Code of Civil Procedure, the court had the power to correct the error and properly did so, and that the defendants were not thereby injured." See, also, Matter of Christian Jensen Co., 128 N.Y. 550; Thousand Island Park Assn. v. Gridley, 25 A.D. 499; Matter of Quo Vadis Amusement Co., 82 id. 240.
The referee is expressly empowered by section 876 of the Code of Civil Procedure to adjourn the examination from time to time to another place within the same county; and the provision for the adjournment of the examination is entirely superfluous and should, therefore, be stricken out pursuant to the motion of the defendant Thomas W. Evans Museum and Institute Society made upon the argument of this motion.
The motion to vacate the order is denied without costs.
Motion denied, without costs.