Mojarrieta v. . Saenz
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term, which denied a motion to amend an order for the service of summons by publication, and granting such motion. The order of publication had a caption as follows : “At a Special Term of the Supreme Court, held at chambers,” etc. It was signed with the initials of the judge with a direction to “ enter.”
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Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing an order of Special Term, which denied a motion to amend an order for the service of summons by publication, and granting such motion. The order of publication had a caption as follows : “At a Special Term of the Supreme Court, held at chambers,” etc. It was signed with the initials of the judge with a direction to “ enter.” The order was in fact made by the judge at chambers. After the publication of the summons, plaintiff moved to amend nunc pro tune, by striking out all of the caption…
1Opinion of the CourtKapallo, J.
The order of publication appears in its body to be made by a judge, reciting that the application was made to him, and the necessary proof was made to his satisfaction. As we have just held in the case of Phinney v. Broschell * it was not void by reason of its having a caption and a direction to enter, but co.uld be treated as the order of a judge, we see no objection to the court allowing it, after it had been acted upon, to be amended by striking but the superfluous portions.
The appeal should be dismissed.
All concur, except Andrews, J., absent.
Appeal dismissed.
*
Ante p. 544.
2Cited by4 opinions
- Montgomery v. PalmerMichigan Supreme Court · 1894
- Aiken v. AikenNew York Supreme Court · 1916
- Regan v. TraubeNew York Court of Common Pleas · 1890
- Coffin v. LessterNew York Supreme Court · 1885