78 N.Y.S. 98 | N.Y. App. Div. | 1902
On October 11, 1901, the plaintiff entered judgment by default in an action begun in a Municipal Court, filed a transcript of her judgment in the office of the county clerk of Kings county, and issued execution thereon. Supplementary proceedings followed the return of the execution. Pending such proceedings the defendant, on January 27, 1902, moved the Special Term to vacate the judgment and all proceedings thereon, on the ground of the improper service of
The amendment is an elimination of all reference to the second order and a conformation of the undertaking accordingly. The substantial fact is that the defendant is confined to the notice of an appeal from one order, and that it is the same notice of appeal as that originally served save that all reference to the second order is stricken out as surplusage, and the undertaking is made to conform. (See Schermerhorn v. Anderson, 1 N. Y. 430.) I am not prepared to say that such amendment was not within the discretion of the Special Term. (See Shuler v. Maxwell, 38 Hun, 242; Fry v. Bennett, 16 How. Pr. 385; 2 Bosw. 684; Baylies N. Tr. & App. 250, and authorities cited.) Of course if the order in effect had permitted an appeal where none had been taken, or had changed the character ■ or scope of an appeal, that would present a different question, and the order could not be sustained. (Lavalle v. Skelly, 90 N. Y. 546; Piper v. Van Buren, 27 Hun, 384.)
I think that the order should be affirmed, but, under the circumstances, without costs.
All concurred, except Hirschberg, J., dissenting.
Order affirmed, without costs.