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Kokomo Strawboard Co. v. Inman

21 N.Y.S. 705 Court N.Y. Gen. Term Decision date 1893-01-13 English

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p. 705
KOKOMO STRAWBOARD CO. v. INMAN et al.
(Supreme Court, General Term, First Department.
January 13, 1893.)

Headnote

Execution—Amendment afteb Satisfaction. . An execution inadvertently issued for too small an amount, through failure to include interest, may notwithstanding satisfaction and return, be amended so as-to include interest; Code Civil Proc. § 723, declaring that the court may on the trial, or at any other time, before or after judgment, amend any process, pleading, or other proceeding, by correcting a mistake. Hatch v. Bank, 78 N. Y. 487 , followed. " • •
Appeal from special term, New York county.
Action by the Kokomo Strawboard Company against Horace Inman and Harry A. Inman, in which plaintiff recovered judgment. Part of the judgment was paid, and execution was issued for the remainder, but for too small an amount, owing to the failure of a clerk in the office •of plaintiff’s attorney to include accrued interest. Plaintiffs thereupon moved for an order amending the execution so as to include interest", and directing return to the sheriff of the execution. From such" an order, defendants appeal. Affirmed.
p. 706
For former reports see 5 N. Y. Supp. 888 ; 11 N. Y. Supp. 329 .
Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
Smith & White, for appellants.
William Ford Upson, for respondent.

The case of Hatch v. Bank, 78 N. Y. 487 , shows that under section 723 of the Code[1] the court had ampié power to grant the relief contained in the order appealed from. The order should be affirmed, with $10 costs and disbursements.

1 This section provides that “the court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such'terms as it deems just, amend any process, pleading, or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case, or, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceedina tú the facts proved. ”

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