
    NEW JERSEY AND HUDSON RIVER RAILWAY AND FERRY COMPANY v. AMERICAN ELECTRICAL WORKS.
    Submitted December 1, 1910
    Decided January 14, 1911.
    In the interest of justice and in a proper caso a party whose statutory proceeding cannot bo formally amended may be permitted to give to the other party, by a stipulation filed in the cause, the protection that such amendment, if it could be made, would afford.
    On certiorari anc! a motion.
    Before Justices Garrison, Swayze and Vooriie.es.
    For the prosecutor, Wendell J. Wright.
    
    For the defendant, McCarter évPnglish.
    
   The opinion of the court was delivered by

Garrison, J.

The petition, under which commissioners were appointed by the Circuit Court to appraise the full market value of the ¡Detitioner’s stock in the corporation of the prosecutor, bears internal evidence of having been drawn and exhibited under the twenty-third section of the Traction act of 1893 (Pamph. L., p. 302); the order that was made strictly follows the petition. The fault ascribed to each is that certain of the duties to lie performed by the commission-ers, under this section, are stated in general terms rather than with that particularity which the prosecutor deems to be essential to its protection. The petitioner (the defendant in certiorari) moves for an opportunity to amend in these particulars the proceeding in the Circuit Court, but has not directed our attention to any statute, or satisfied us of any existing practice, under which such an amendment can be made.

The situation therefore is that the piosecutor seeks for a certain protection that the present proceeding does not afford to it which the defendant is willing to afford if the rules of practice will permit. It would be very unfortunate, under these circumstances, if the only alternative were the dismissal of the proceeding or its retention in its present form. We think that the defendant may, if it will, do, in effect, what ihe protection of the petitioner requires, without involving the power of the Circuit Court to amend this statutory proceeding. In the interest of justice, such a course should be followed rather than one that is destructive, or at best wasteful, of the substantial interests of one or the other of the parties before the court.

If the defendant will, within twenty days, pay the costs nf the prosecutor and file in the cause and serve upon the attorney of the prosecutor a stipulation that its petition and the order of the. Circuit Court obtained upon it and all proceedings had or to be had thereunder shall be conclusively taken as based upon the twenty-third section of chapter 172 of the laws of .1893, and jhall be treated to every intent as if sairl petition and order embodied with particularity the pertinent provisions of that act, the order of the Bergen Circuit Court will he affirmed within ten days thereafter unless during such time the attorney of the prosecutor shall give notice to opposing counsel and to this court of some objection to the form of such stipulation, in which case the mailer will he disposed of upon the hearing on such objection. In default of the filing of such stipulation, the prosecutor may give notice of a motion for a rule for judgment in certiorari.

The motion of the defendant is denied, with costs.  