Johnson v. Guernsey

205 A.D. 423, 199 N.Y.S. 571, 1923 N.Y. App. Div. LEXIS 5037

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1923
• Status: Published

Opinion

Per Curiam:

This is a motion to permit defendants to file exceptions to decision nunc pro tunc. Power is given the Supreme Court to entertain this motion in section 98 of the Civil Practice Act. While this motion should have been made to the Special Term, we have unquestionable power to entertain it (Matter of Barkley, 42 App. Div. 597; Matter of Mitchel v. Cropsey, 177 id. 663) and will do so in this particular instance to complete the record and expedite the appeal. The omission was due to a misreading of the referee’s letter, and the delay has not prejudiced the defendants. In the interests of justice the omission should be supplied.

The motion, therefore, should be granted upon payment to the plaintiff of ten dollars costs.

All concur.

Motion to dismiss appeal granted, unless appellants shall file and serve printed briefs by May twelfth and be ready for argument on May fifteenth. Motion to permit defendants to file exceptions to decision nunc pro tunc granted, upon payment to the plaintiff of ten dollars costs.