Brooklyn Union Elevated Railroad v. Valance — 123 A.D. 687

Majority

p. 687

Brooklyn Union Elevated Railroad Company, Respondent, v. Sarah U. Valance and Others, Defendants, Impleaded with John R. Rowlands and Others, Appellants.

Second Department,

January 10, 1908.

Headnote

Eminent domain — power of court to amend judgment.

Under section 723 of the Code of Civil Procedure, made applicable to condemnation proceedings by section 3368, the court after judgment by default may allow an amendment of the petition and judgment correcting a clerical error in the description of the property condemned.

p. 688

Appeal by-the: defendants,.-John B. Bowlands and others, from' . an order of the'Supreme-Court, made at the Kings County Special ' Term and énteTédan-the-office of the-clerk-of. -the-county df Kings on the :19th day df -July, 1.9.07, granting the plaintiff’s motion to. amend the petition and order herein -appointing ■ commissioners to value certain easements and real property.

Almeth W. Hoff [Michael J. Joyce with him on the brief.], for the appellants.

Charles L. Woody [George D. Yeomans with him on the brief], for the respondent.

The respondent has a retaining wall 8 feet wide at the base .and . 2 feet at jibe tqp along its sunken railroad -right of way against the appellants’ land. The base of such wall was one foot over on the appellants’ land, and this proceeding was begun to acquire the.strip encroached upon. After appearing,-the appellants allowed-judgment to be taken by default: A motion was afterwards made by the respondent while the'commissioners, were still sitting to correct the description in the petition and-judgment. The introductory words of such description, and the map referred- to in it, which exhibited-the wall, showed the-strip-one foot wide'to be taken, but in the-description by metes and bounds the lines were not run correctly. The correction asked for was -only of a -clerical error, and the court was authorized to make it (Code Civ. Pro. §§ 723, 3368).

The order should be affirmed.

WóomwÁRp, -Jenics, Bien and :Millee, JJ., concurred.

Order affirmed,, with, ten dollars costs, and disbursements.