Millbank v. Broadway Bank

3 Abb. Pr. 223

• Court: New York Supreme Court
• Decided: June 15, 1867
• Status: Published

Opinion

Ingraham, J.

In this case judgment was given on the demurrer for the defendants, because the plaintiff had not, before suit, filed the undertaking required by section 238 of the Code.

The plaintiff now moves for leave to file the- undertaking nunc pro tunc. The defendants object that this cannot be allowed, because the filing of the undertaking is- a preliminary requisite to be done before commencing the action.

The Code, § 174, provides that when any proceeding fails to conform to the provisions of the Code, the court may permit an amendment of such proceeding so as to make it conformable thereto, and supply any-omission therein. ‘ Section 173 allows any proceeding to be amended by correcting a mistake in any respect. Under this section an undertaking in arrest has been amended, (12 How. Pr., 381); and an undertaking on attachment. (10 Abb. Pr., 424.)

Under these provisions and decisions I think this motion may be granted. The filing of tlu: undertaking was a necessary step ibo be taken, in bringing the action, and the omission to file it may be supplied. The plaintiff must pay all the costs on the demurrer and the costs of this motion.