
    The People ex rel. The New York Central & Hudson River R. R. Co., Resp’t, v. Samuel Cook, Assessor, et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1891.)
    
    Taxes—Certiorari to review assessment—Power to amend.
    In a special proceeding brought to review the action of assessors, a writ of certiorari was granted which was made returnable at a county clerk's office instead of at special term. Held, that the court had power to amend it and that § 10 of title 5 of chapter 7 of part 3, R. S , giving the court power to amend a special proceeding, was not repealed by the Code of Civil Procedure, chap. 8, title 1.
    Appeals from two orders, one in favor of the relator ordering an order, granting a writ of certiorari and the writ issued thereunder amended nunc pro tune, and that the return to said writ already made stand and be deemed the return therein. Also an order made at the same time denying the defendant’s motion to quash such writ.
    
      Henry A. King, for app’lts ; E. A. Parmenter, for resp’t
   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 Eensselaer county clerk’s office, and not at a special term of this court, as required by chap. 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 defendant 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 § 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. The Board of Supervisors of Schoharie Co., 40 St. Rep., 66, 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 § 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 New York before a notary pulic 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 § 723 of the Code of Civil Procedure. In Bohlen v. Elevated R. R., 121 N. Y., 546; 31 St. Rep., 888, the court allowed an amendmnt 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 term in which the judgment was rendered.

The appellant cites 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 holding that where, by the preliminary steps taken, the court had acquired jurisdiction, it cannot aménd 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 such amendment is applied for before final judgment or order upon the merits.

By § 10 of title 5, chapter 7, part 3 of the Revised 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 § 728 of that title, yet the provisions of the Revised Statutes above referred to do not seem to be either in express terms or by implication repealed by that title. In People ex rel Herkimer & Mohawk R. R. Co. v. The Assessors of Herkimer, 6 Civil Pro., 287, a writ of certiorari issued under chapter 269, Laws of 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 of chap. 269, Laws of 1880, protects the appoint- from liability of costs on this appeal.

Learned, P. J., and Putnam, J., concur.  