Vanderheyden v. Gary

Headnote

Notices of pendency and returns to attachments, may he amended by inserting in the notices and inventories, a specific description of a lot of land omitted by mistake.

Appeal from an order made at special term by Justice Ingalls, amending notices of pendency and the returns to attachments by inserting in the notices and inventories, a specific description of a lot of land omitted by mistake.

The language of the inventory on the return to the attachments was:' “ One farm of land, being partly situated in the town of Brunswick and the city of Troy, known as the Gary farm, and containing three hundred and fifty acres of land, be the same more or less; a printed discription of said farm is hereunto annexed.” The notices of pendency contained the same specific description.

The printed description referred to was very.long, and embracing specific descriptions of a large number of separate lots, but a specific description of one lot of twenty acres was omitted.

The motion papers showed:

First. That the defendants owned, and were in possession of the twenty acre lot at the time of the issuing of the attachments.

Second. That this was known to the deputy sheriff who had charge of the attachments, that he intended to levy on the twenty acre lot, and to include it in the printed description, supposed it was included, but that it was omitted by oversight and inadvertence.

Third. That the twenty acre lot has, for more than twenty years, been known as a part of the so-called Gary farm.

Fourth. That shortly after the levy under the attachments, the defendants made a general assignment for the benefit of creditors, that this lot is claimed and this motion is opposed by the assignee alone, and that no one else has any interest adverse to the plaintiff.