Fisher v. Dougherty

49 N.Y. Sup. Ct. 167, 4 N.Y. St. Rep. 679

• Court: New York Supreme Court
• Decided: November 15, 1886
• Status: Published

Opinion

Hardin, U. J.:

We need consider only that part of the order specifically appealed from. In doing that, we may observe that the record brought before us docs not indicate any objection taken in the Special Term to the offer to read the affidavit of plaintiff of May 6, 1885, and of Douglass, of May 4,1885. (Kibbe v. Wetmore, 31 Hun, 424.)

In the case just cited, SMrra, P. J., said: “But the appeal book does not show that any such objection was made, and, therefore, the defendant is to be regarded as having consented that the affidavits in question be received and fully considered by the court. The defendant cannot now be heard to object for the first time that the affidavits were improperly received, and that the order allowing the amendment should, therefore, be reversed.”

The record in respect to them is, viz.: “ Chemung Special Term, May 8, 1885. Received on motion and order filed Delaware county clerk’s office.” However, section 724 of the Code of Civil Procedure confers upon the court power, in its discretion, to allow an amendment of proceedings had. ( Weeks v. Tomes, 16 Hun, 319 ; S. C., affirmed, 76 N. Y., 601.) In that case the power of the court was distinctly declared to grant amendments nuno pro tuno, although it was said “ such an order is not operative as against persons who are not parties to the action.” The question before us only relates to the parties to the action. The court exercised its discretion and named the terms, and plaintiff complied. We may approve of the exercise of the power. Defendant having accepted the money paid to comply with the terms of the oi’der, and in the discretion of the court deemed proper, ought not to be heard to complain of the course the discretion of the court took. (Eagan v. Moore, 2 Civil Pro. [Browne], 300 : Gribbon v. Freel, 93 N. Y., 93; Code of Civil Pro., § 723.) (2.) That part of the order which granted costs to defendant is not appealed from. (3.) The. notice of appeal does not specify that part of the order which denied the motions as being a part that was appealed from.

These views lead to an affirmance of the order. It may be remarked that it does not appear by the appeal papers that any rights had intervened between the 25th of March and the 8th of May, 1885, and no question in that regard need be passed upon upon this appeal.

The order should be affirmed, with ten dollárs costs and disbursements. The motion to dismiss the appeal may be denied, without costs to either party.

Boardman and Pollett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Motion to dismiss appeal denied, without costs to either party.