Majority
p. 104John T. Barnard, as Temporary Administrator, etc., of Ann E. Crouse, Deceased, Respondent, v. John F. Gantz and Others, Appellants.
Headnote
Amendment of a ease on appeal.Wien the statement: “ The foregoing cbntains all the evidence upon the trial,” has been omitted from a case on appeal through inadvertence, it is proper for the court at Special Term to permit its insertion for the purposes of a pend ing appeal to the Court of Appeals.
Appeal by the defendants, John F. Gantz and others, from the order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of Kings county on the 27th day of Jauuary, 1893, upon the motion of the plaintiff, sending the case on appeal herein back to the referee before whom the cause was tried, to certify thereto according to the fact, and directing the clerk to annex the order and the referee’s certificad to the judgment roll.
L. E. Warren, for the appellants.
E. B. Bm'nvm, for the respondent.
This is an appeal from an order made at Special Term directing the insertion in 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.
p. 105
The statement that the case contained all the . evidence was omitted through inadvertence, and the plaintiff is fearf nl that the omission may imperil his success in the Court of Appeals.
¥e 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 pi’evail over or stifle merits.
The order should be affirmed, with costs and disbursements.
Barnard, P. J., and Pratt, J., concurred.
Order affirmed, with costs and disbursements.