Barnard v. Gantz — 52 N.Y. St. Rep. 604

Majority

p. 604

John T. Barnard, Adm'r, Resp't, v. John F. Gantz et al., App'lts.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

Case—Amendment.

An order directing the insertion in °the case on appeal to the court of

p. 605

appeals of the words “the foregoing contains all the evidence upon the trial,” where the same have been omitted by inadvertence, is a proper exercise of discretion.

Appeal from order amending a case on appeal to the court of appeals.

Hatch & Wickes (L. K Warren, of counsel), for app’lts; George G. Barnard (F. B. Barnum, of counsel), for resp’t.

This is an appeal from an order made at special term directing the insertion m the printed case of these words: "The foregoing contains all the evidence upon the trial.”

The cause has been tried before a referee who dismissed the complaint, that judgment was reversed by the general term and now the defendants have appealed to the court of appeals.

The statement that the case contained all the evidence was omitted through inadvertence, and the plaintiff is fearful that the omission may imperil his success in the court of appeals.

We think the granting of the order was a wise exercise of the discretion of the«special term.

The rule requiring the statement is technical at best and the courts will not permit technicalities to prevail over or stifle merits.

The order should be affirmed, with costs and disbursements.

Babnaed, P. J., and Pbatt. J., concur.