Clickman v. Clickman

3 How. Pr. 365

• Court: New York Court of Appeals
• Decided: January 15, 1849
• Status: Published

Opinion

Bronson, J.

The section referred to declares, that after an appeal the parties shall be known as appellant and respondent; “ but the title of the action shall not be changed in consequence of the appeal.” This goes only to “the title of the action” and not to the name or style of the court; and clearly these papers should have mentioned the proceeding as being in the Court of Appeals instead of the Supreme Court. True, the notice states that a motion will be made in the Court 'of Appeals ; but the notice is given in the Supreme Court, and, as would be proper if the motion was intended to be made in that court.

The court may amend pleadings and proceedings; (Code, § 149,) but this cannot extend to an affidavit. .

In certain cases, an affidavit may be good without a title, or with a defective title. (§ 867.) But this provision relates, I suppose, to the naming of the parties, and not the name of the court in which the matter is pending or the proceeding is to be had. And besides, this section does .not help the notice.

The papers are not sufficient, and the motion must be denied on that ground. Motion denied.