
    Clifford L. Miller, Appellant, v. Orlando W. Norcross, Doing Business Under the Name of Norcross Brothers, Respondent, Impleaded with Others.
    First Department,
    December 20, 1907.
    Appeal — case — erroneous exclusion of lis pendens.
    When it is undisputed that a Us pendens is actually on'file, a party who sought to offer it in evidence is entitled to have it included in the case on appeal,although instead of producing the original instrument he offered in evidence a certificate of the county clerk showing that it was on file, the court stating that when produced it would be marked as an exhibit, and by inadvértence counsel failed to have the original paper brought from the files of the court.
    If, under such circumstances, the defendant stands upon the technical objection that the original instrument was not produced, the judgment should be set aside and the trial opened to enable the plaintiff to produce the instrument.
    
      Appeal by the plaintiff, Clifford L. Miller, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 18th day of October, 1907, denying the plaintiff’s motion to be permitted to produce on settlement of the proposed' case on appeal the Us pendens-filed in said clerk’s office on March 6, 1902, in this action, and directing said Us pendens to be marked as an exhibit, and. striking out a finding of fact which found that no notice of Us pendens had been filed and substituting in place thereof a finding that a notice of pendency of action had been filed.
    
      Gyrus G. Midler, for the. appellant.
    
      Frank H. Gerrodette, for the respondent.
   Ingraham, J. :

I think upon the facts appearing here the court should have granted the plaintiff some relief. Upon the trial the plaintiff offered in evidence a certificate of the county clerk as to the filing of a Us pendens. This certificate stated that a Us pendens had been filed in March, 1902. Counsel for the defendant objected to this certificate as evidence of the filing of the Us pendens / that objection Was sustained,.and the court then said'that when the original notice of pendency of action was produced it would be marked Exhibit 20. There- is no dispute but that the notice of lis pendens had been actually filed and that the plaintiff intended to offer it in exddence. It was a part óf the record of the court and -the certificate of the county clerk that it had been filed Was presented to the court. Purely by inadvertence the counsel for the plaintiff did not have the original paper brought from the files of the court, but it was perfectly well understood that the paper xvas to be offered in evidence and the court expressly stated that when produced it should be marked Exhibit 20. Considering the fact that the paper xvas on file and constructively before the court, I think that xvas a sufficient offer in evidence of the notice. If the defendant insists upon the point that the original notice xvas not actually produced and marked and insists upon retaining in the decision a finding which is incorrect as shown by the official records of the court, xve think the trial judge should set aside the judgment and decision and open the trial so as to enable the plaintiff to produce this Us pendens from the files of the court and have-it marked in evidence when judgment can be again entered. But the rights of the plaintiff should not he affected by a pure mistake when from what happened at the trial it seems that the Us-pendens was really in evidence and before the court.

With tliis statement of our views we think the order appealed from should be reversed, with ten dollars' costs and disbursements, to abide the final result of the appeal from the judgment, if one is taken, and the case remitted to Special Term for further proceedings in conformity with the views here expressed.

Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements to abide event, and case remitted to Special Term as stated in opinion. Settle order on notice.  