
    COURT OF APPEALS.
    Agustin H. Mojarietta et al. agt. Thomas Saenz et al.
    
    
      Order for publication of summons—must be made by a judge out of court— not void by reason of caption and direction to emt&r—may be a/mended.
    
    Where an order had heen made for the service of the summons by publication, which order was similar in all respects to that in Phinn&y agt. BroscheU (ante, 492), hut it did not appear, as in that case, that the order had been made in the judge’s private chambers:
    
      Edd, that it was not void by reason of its having a caption and a direction to enter, hut could be treated as the order of a judge.
    
      Eeld, also, that the order might be amended, on motion, after it had been acted upon, by striking out the superfluous portions.
    
      April 1880.
    
      Air order had been made for the service of the summons by publication, which order was similar in all respects to that in Phmney agt. Broschell (write, 492). It did not, however, appear as in that case, that the order had been made in the judge’s private chambers.
    The plaintiffs, on notice, moved to amend the order by striking out all of the caption preceding the words “at chambers,” and the direction “ enter,” before the judge’s signature at the foot of the order.
    The motion was denied at special term, on the ground that the court had no power to make the amendment.
    The plaintiffs appealed to the general term, where the order of the special term was reversed, and the motion granted, without costs. The defendants thereupon appealed to the court of appeals.
    
      E. R. Olcott and J. F. Mosher, for plaintiffs.
    
      Edward Patterson, for defendants.
   Rapallo, 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 Phmney agt. Broschell, it was not void by reason of its having a caption and a direction to enter, but could 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 out the superfluous portions.

The appeal should be dismissed.

All concur, except Ajsdbews, J., absent.  