Near v. Van Alstyne

14 Wend. 230

• Court: New York Supreme Court
• Decided: October 15, 1835
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

By the construction given by this court, in Brace v. Benson, 10 Wendell, 214, to the revised statutes, 2 R. S. 424, 5, and 225, it was held that justices have the power of amendment, in the same manner as courts of record before judgment. The amendment made by the justice was clearly such an one as it became his right and duty to make. The provision requiring process to be filled up before issuing, 2 R. S. 267, § 233, was intended to guard against the abuse which at one time was but too common. Justices put blank process into the hands of constables and others, to be filled up by them as they saw fit, in the same manner as attornies in courts of record issue process. To such cases the statute is applicable, but does not interfere with the power of amendment in clerical mistakes, in process issued properly by the justice himself.

The common pleas erred, and the judgment must be reversed.

Judgment reversed.