
    People ex rel. New York Cent. & H. R. R. Co. v. Cook, Assessor, et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 28, 1891.)
    Certiorari to Review Assessment—Amendment—Repeal op Statute.
    Rev. St. pt. 8, c. 7, tit. 5, § 10, extending the power to amend technical defects to special proceedings as well as ordinary actions, was not repealed by Code Civil Proc. tit. 1, c. 8, which relates mainly to actions, and does not refer to special proceedings, except in section 728; and where a writ of certiorari to review a village assessment was made returnable to the county clerk’s office, instead of to the special term, as required by Laws 1880, c. 269, for which defect a motion to quash was made after the expiration of the time limited for issuing a certiorari, the court had power to allow an amendment nunc pro tune, and such allowance was a proper exercise of discretion.
    Appeal from special term, Albany county.
    
      
      Certiorari in behalf of the New York Central & Hudson Elver Railroad Company against Samuel Cook, assessor of the village of Bath, and other officials thereof, to review an assessment of the railroad property. The court below made an order denying a motion to quash the writ, and also an order permitting the writ, as well as the order allowing it, to be amended nunc pro tune. Respondents appeal from both orders.
    Affirmed.
    Argued before Learned, P. J., and Mayham and Putnam, JJ.
    
      King <£• Speck, {Henry A. King, of counsel,) for appellants,
    cite the following authorities in support of the proposition that the requirements of a special statutory proceeding must be strictly followed: McIntyre v. Carriere, 17 Hun, 64; Bloom v. Burdick, 1 Hill, 130; Stanton v. Ellis, 12 N. Y. 575; In re Valentine, 72 N. Y. 184; Battell v. Torrey, 65 N. Y. 294; Brown v. Mayor, 3 Hun, 685; Eldred v. Eames, 115 N. Y. 401, 22 N. E. Rep. 216; Hill v. Board, 119 N. Y. 344, 23 N. E. Rep. 921.
    
      Smith & Parmenter, {B. A. Parmenter, of counsel,) for respondent.
   Mayham, J.

The relator applied at the August special term, 1891, for an order allowing a writ of certiorari to issue to review the assessment made by the respondents, as assessors of the village of Bath, upon the relator’s railroad, the double track of which runs through that village, and in which depot buildings are located. On such application an order was granted, and a writ of certiorari was issued pursuant thereto. That writ was made returnable at the Rensselaer county clerk’s office, and not at a special term of this court, as required by chapter 269 of the Laws of 1880. The respondents appeared specially, and, in their answer, first objected to the validity of the writ on the ground that the same was not returnable at special term, as required by statute. The respondents who thus appeared then answered to the merits of the writ. The relator thereupon moved to amend the writ nunc pro tune, which motion was granted. The respondents at the same time moved to quash the writ on the ground that it was not made returnable at a special term of the court, and was therefore unauthorized and void, which motion was denied, from both of which orders the defendants appeal.

The principal, and perhaps the only important, question presented on these appeals is whether the writ and order allowing the same are amendable. At the time the defendants raised the question of the regularity of this writ by the answer the time limited by chapter 269 of the Laws of 1880 for bringing a certiorari had expired, and the relator’s opportunity to review this assessment was lost, unless the court could relieve by the allowance of an amendment. That fact furnishes a good reason for the exercise of the discretion of the court in granting the amendment if the power to do so existed in the court. On the part of the relator it is insisted that that power existed in and was properly exercised by the court; that the court acquired jurisdiction of the parties and subject-matter by the petition; and that any subsequent error in the exercise of its power did not divest it of the jurisdiction thus acquired. If this mistake had occurred in the prosecution of an action, instead of a special proceeding, there would be little doubt of the power of the court to order a correction nunc pro tune under the provisions of section 723 of the Code of Civil Procedure. In Kibbe v. Wetmore, 31 Hun, 424, the court ordered an attachment which had been issued on the ground of the defendant’s non-residence to be amended, inserting therein as grounds for its issuance the fraudulent acts of defendant in disposing of his property. In Gaylord v. Board, opinion by Judge Learned, this court allowed "an order to be entered nunc pro tune on appeal when no order had been made and entered at special term, on the allowance of an alternative mandamus. In Tobin v. Cary, 34 Hun, 431, the court directed the guardian ad, litem to acknowledge his consent to serve as required by section 472 of the Code of Civil Procedure, and file the same with the judgment roll, and directed the clerk to file and attach the same to the judgment roll with the same force and effect as if it had been filed with the judgment roll. In Murphy v. Hall, 38 Hun, 528, on a motion to vacate an order for the publication of a summons and vacate an attachment issued in the action on the ground that the affidavit appeared to have been sworn to in the city of Hew York .before a potary public of the county of Albany, the court held that it was evidently a clerical error, which did not prejudice the defendant, nor affect a substantial right; and that an amendment should be allowed, under section 723 of the Code of Civil Procedure. In Bohlen v. Railroad Co., 121 N. Y. 546, 24 N. E. Rep. 932, the court allowed an amendment of an ambiguity in the findings of the trial court which was plainly the result of inadvertence, and held that the power to grant such amendment was not limited to the terrain which the judgment was rendered.

The appellants cite a line of authorities holding that in special statutory proceedings the statutory direction must be substantially complied with, or the proceedings will not be effectual. That rule is sound, and cannot be questioned. But I have found no case holdingthat where, by the preliminary steps taken, the court bad acquired jurisdiction, it cannot amend any technical defect or error in the proceedings, where the proceedings taken by the parties fail to comply with the provisions of the statute, so as to make them conformable to such provisions, when substantial justice will be promoted thereby, if sucli amendment is applied for before final judgment or order upon the merits. By section 10, tit. 5, c. 7, pt. 3, of the Bevised Statutes, the power of the court to amend proceedings pending in it is extended to and embraces special proceedings. While the provisions of title 1 of chapter 8 of the Code of Civil Procedure, relating to amendments, seem to relate chiefly to actions, and special proceedings are not expressly referred to except in section 728 of that title, yet the provisions of the Bevised Statutes above referred to do not seem to be either in express terms or by implication repealed by that title. In People v. Assessors, 6 Civil Proc. R. 297, a writ of certiorari, issued under chapter 269, Laws 1880, was held at special term to be amendable. While the question is not free from doubt, we are of the opinion that the special term had power to order the amendment in this case; and, if the power existed, it was a proper case for its exercise, and that the order granting the amendment should be affirmed. That being so, it follows as a necessary consequence that the motion to quash the certiorari was properly denied. Both orders are affirmed. But, as these appeals arose out of a mistake on the part of the relator, we think no costs should be allowed on this appeal. Section 6, c. 269, Laws 1880, protects the appellants from liability for coats in this appeal.

All concur. 
      
      Not reported.
     