
    SAMUEL T. LUDLOW et al., Respondents, v. GEORGE W. MEAD, Appellant.
    Practice—Correction op order nunc pro tune.
    Appeal from an order made at special term allowing defendant to make a -certain order, previously granted, conform to the affidavit on which said order was granted.
   Pratt, J.

is an appeal from an order made at a special term. The motion made on the part of the appellant, was to vacate an order made Febru•ary 27, 1886, or to make the same conform to the affidavit and notice of motion on which such order was granted.

The appellant’s motion was denied, and leave was granted by the court at special term to file an additional affidavit mine pro tune, setting forth a different state of facts from that swm'n to in the original affidavit.

The original application was for leave to issue execution on a judgment specified in the notice of motion.

The moving affidavit recites that on the “first day of October, 1878.”

No notice was given to defendant Mead of an application for leave to issue -execution on any judgment of October fifth, 1878

The plaintiff simply made a mistake in his affidavit as to the date of his judgment. The defendant does not claim to have been misled, or in any manner prejudiced by the mistake, and we think it was clearly within the power of the court to permit the plaintiff to make the correction. Had the defendant appeared on the return day of the first motion, and made the objection that there was no such judgment, it would have undoubtedly been corrected upon the spot; and the fact that plaintiff had made the mistake, may account for "his non-appearance. Technically the order ought to have conformed to the affidavit, but no injustice, so far as appears, was done to defendant. It is absurd to say that because the plaintiff made a mistake in a date he has lost his Judgment. Costs being in the discretion of the court, the defendant has in no "manner been prejudiced by the action of the court.

Barnard and Dykman, JJ., concur.  