Miller v. Norcross

Appellate Division of the Supreme Court of New York

Miller v. Norcross

122 A.D. 793, 107 N.Y.S. 854, 1907 N.Y. App. Div. LEXIS 2556

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1907

StatusPublished

This text of 122 A.D. 793 (Miller v. Norcross) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Norcross, 122 A.D. 793, 107 N.Y.S. 854, 1907 N.Y. App. Div. LEXIS 2556 (N.Y. Ct. App. 1907).

Pincite

Opinion

Ingraham, J. :

I think upon the facts appearing here the court should have granted the plaintiff some relief. Upon the trial the plaintiff offered in evidence a certificate of the county clerk as to the filing of a Us pendens. This certificate stated that a Us pendens had been filed in March, 1902. Counsel for the defendant objected to this certificate as evidence of the filing of the Us pendens / that objection Was sustained,.and the court then said'that when the original notice of pendency of action was produced it would be marked Exhibit 20. There- is no dispute but that the notice of lis pendens had been actually filed and that the plaintiff intended to offer it in exddence. It was a part óf the record of the court and -the certificate of the county clerk that it had been filed Was presented to the court. Purely by inadvertence the counsel for the plaintiff did not have the original paper brought from the files of the court, but it was perfectly well understood that the paper xvas to be offered in evidence and the court expressly stated that when produced it should be marked Exhibit 20. Considering the fact that the paper xvas on file and constructively before the court, I think that xvas a sufficient offer in evidence of the notice. If the defendant insists upon the point that the original notice xvas not actually produced and marked and insists upon retaining in the decision a finding which is incorrect as shown by the official records of the court, xve think the trial judge should set aside the judgment and decision and open the trial [795]*795so as to enable the plaintiff to produce this Us pendens from the files of the court and have-it marked in evidence when judgment can be again entered. But the rights of the plaintiff should not he affected by a pure mistake when from what happened at the trial it seems that the Us-pendens was really in evidence and before the court.

With tliis statement of our views we think the order appealed from should be reversed, with ten dollars' costs and disbursements, to abide the final result of the appeal from the judgment, if one is taken, and the case remitted to Special Term for further proceedings in conformity with the views here expressed.

Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to abide event, and case remitted to Special Term as stated in opinion. Settle order on notice.

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Ingraham, J. :

I think upon the facts appearing here the court should have granted the plaintiff some relief. Upon the trial the plaintiff offered in evidence a certificate of the county clerk as to the filing of a Us pendens. This certificate stated that a Us pendens had been filed in March, 1902. Counsel for the defendant objected to this certificate as evidence of the filing of the Us pendens / that objection Was sustained,.and the court then said'that when the original notice of pendency of action was produced it would be marked Exhibit 20. There- is no dispute but that the notice of lis pendens had been actually filed and that the plaintiff intended to offer it in exddence. It was a part óf the record of the court and -the certificate of the county clerk that it had been filed Was presented to the court. Purely by inadvertence the counsel for the plaintiff did not have the original paper brought from the files of the court, but it was perfectly well understood that the paper xvas to be offered in evidence and the court expressly stated that when produced it should be marked Exhibit 20. Considering the fact that the paper xvas on file and constructively before the court, I think that xvas a sufficient offer in evidence of the notice. If the defendant insists upon the point that the original notice xvas not actually produced and marked and insists upon retaining in the decision a finding which is incorrect as shown by the official records of the court, xve think the trial judge should set aside the judgment and decision and open the trial [795]*795so as to enable the plaintiff to produce this Us pendens from the files of the court and have-it marked in evidence when judgment can be again entered. But the rights of the plaintiff should not he affected by a pure mistake when from what happened at the trial it seems that the Us-pendens was really in evidence and before the court.

With tliis statement of our views we think the order appealed from should be reversed, with ten dollars' costs and disbursements, to abide the final result of the appeal from the judgment, if one is taken, and the case remitted to Special Term for further proceedings in conformity with the views here expressed.

Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to abide event, and case remitted to Special Term as stated in opinion. Settle order on notice.

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Bluebook (online)

122 A.D. 793, 107 N.Y.S. 854, 1907 N.Y. App. Div. LEXIS 2556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-norcross-nyappdiv-1907.