Saril v. Payne

City of New York Municipal Court

Saril v. Payne

1 N.Y.S. 15, 1888 N.Y. Misc. LEXIS 1163

CourtCity of New York Municipal Court

DecidedApril 30, 1888

StatusPublished

Cited by4 cases

This text of 1 N.Y.S. 15 (Saril v. Payne) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Saril v. Payne, 1 N.Y.S. 15, 1888 N.Y. Misc. LEXIS 1163 (N.Y. Super. Ct. 1888).

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Opinions

McGown, J.

The omission of the venue in the affidavit was clearly an irregularity, but such an irregularity as may be corrected by amendment. In a pleading, the object of the venue is to point out the county from which the jury are to come who are to try the issue. In an affidavit, it is to determine whether the officer before whom the affidavit was taken, viz., the commissioner of deeds or notary public, had jurisdiction to take the affidavit, in the place named.

This proceeding is entitled in the city court of Hew York, and the affidavit is sworn to before a notary public, Hew York county, the county in which the said court is held and exercises its jurisdiction. Section 723, Code Civil Proc. provides that, “in any stage of the action, the court must disregard an error or defect in the pleadings, or other proceedings, which does not affect the substantial rights of the adverse party. ” The substantial rights of the defendant cannot be affected by allowing the amendment as it will not, and cannot, affect any defense he may have to the proceeding. The irregularity complained of is amendable, and an amendment is fully authorized by sections 721-724, 728, Code Civil Proc. See, also, Hogan v. Koyt, 37 N. Y. 300; Fawcett v. Vary, 59 N. Y. 597. To hold otherwise would not be in furtherance of justice. The power to allow such amendment has been determined in this court. Clement v. Fenenback, 1 City Court R. 57; Warren v. Stratton, Daily Reg. Feb. 27, 1888; Lawton v. Kiel, 51 Barb. 30.

Order appealed from must therefore be affirmed, with costs.

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McGown, J.

The omission of the venue in the affidavit was clearly an irregularity, but such an irregularity as may be corrected by amendment. In a pleading, the object of the venue is to point out the county from which the jury are to come who are to try the issue. In an affidavit, it is to determine whether the officer before whom the affidavit was taken, viz., the commissioner of deeds or notary public, had jurisdiction to take the affidavit, in the place named.

This proceeding is entitled in the city court of Hew York, and the affidavit is sworn to before a notary public, Hew York county, the county in which the said court is held and exercises its jurisdiction. Section 723, Code Civil Proc. provides that, “in any stage of the action, the court must disregard an error or defect in the pleadings, or other proceedings, which does not affect the substantial rights of the adverse party. ” The substantial rights of the defendant cannot be affected by allowing the amendment as it will not, and cannot, affect any defense he may have to the proceeding. The irregularity complained of is amendable, and an amendment is fully authorized by sections 721-724, 728, Code Civil Proc. See, also, Hogan v. Koyt, 37 N. Y. 300; Fawcett v. Vary, 59 N. Y. 597. To hold otherwise would not be in furtherance of justice. The power to allow such amendment has been determined in this court. Clement v. Fenenback, 1 City Court R. 57; Warren v. Stratton, Daily Reg. Feb. 27, 1888; Lawton v. Kiel, 51 Barb. 30.

Order appealed from must therefore be affirmed, with costs.

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Bluebook (online)

1 N.Y.S. 15, 1888 N.Y. Misc. LEXIS 1163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saril-v-payne-nynyccityct-1888.

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