Levy v. Scheringer

Headnote

Change oe Venue—JRemand—Amendment oe Undertaking.

Code Civil Proc. N. Y. § 725, empowers a court, to which a return has been made by a subordinate court, to direct the return to be amended in matter of form either before or after judgment. Sections 729, 730, authorize the amendment of defective bonds and undertakings. Held, that a cause removed from a district court to the court of common pleas, on an undertaking which contains no recital of any penalty, may be remanded to the district court for the purpose of enabling it to amend the undertaking.

Action brought in a district court in New York city by plaintiff, Levy, against defendant, Scheringer, • for $120 and interest. Defendant had the cause removed to the court of common pleas. Plaintiff now moves that it be remanded, because the undertaking given by defendant to procure the removal fails to recite the amount of any penalty. Code Civil Proc. N. Y. §§ 725, 729, 780, provide as follows: “Sec. 725. A court, to which a return is made by a sheriff or other officer, or by a subordinate court or other tribunal, may, in its discretion, direct the return to be amended in matter of form either before or after judgment.” “Sec. 729. A bond or undertaking, required by statute to be given by a person to entitle him to a right or privilege or to take a proceeding, is sufficient if it conforms substantially to the form therefor prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party to whom or for whose benefit it is given. Sec. 730. Where such a bond or undertaking is defective, the court, officer, or body that would be authorized to receive it, or to entertain a proceeding in consequence thereof if it was perfect, may, on the application of the per

sons who executed it, amend it accordingly; and it shall thereupon be valid from the time of its execution.”