Rogers v. Sattler

28 Misc. 242, 58 N.Y.S. 1073

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Leventritt, J.

This is an appeal from a final order in summary proceedings directing the removal of the tenant from ¡No. 625 East Fifth street, in the city of ¡New York. It appeared by the petition that the tenant had defaulted for three months’ rent of the said premises before described, to-wit, “ from the 1st day of January, 1899, to the 1st day of April, 1899.” Upon the trial the petitioner proved that January, February and March were the three months referred to.. The petition having been verified on the 29th of March, when the April rent was not yet due, a motion was made to amend the petition by substituting the word “ March ” for the word “ April.” The tenant claims that the allowance of the amendment was reversible error. That is a mistaken view.

Every fact necessary to confer jurisdiction is clearly set out in ■ the petition. While the court is without power to amend in a particular essential to confer jurisdiction, yet that haying once attached the liberal provisions of the Code should apply to all sribsequent proceedings. Code Civ. Pro., §§ 723, 3347, subd. 6; Fox v. Held, 24 Misc. Rep. 184. Especially is this true where, as in this instance, the amendment involves the rectification of a mere clerical error. The default in the payment of rent is correctly alleged to have covered a period of three months from a specified date which clearly terminated on March 1st, hut which by misstatement was made to read April 1st. It would be straining the principles of construction to declare incurable by amendment such an obvious and immaterial oversight.

The other objections urged being frivolous, the order must be affirmed.

Freedman, P. J., and MacLean, J., concur.

Order affirmed, with costs to respondent.