Summary
In Kirschner v. Abbotts Bakeries, Inc. (92 Misc. 402) the court allowed an amendment nunc pro tunc of a notice of appeal so as to change the name of the defendant.
Summary of this case from Rothenberg v. MetzgerOpinion
November, 1915.
Walter Jeffreys Carlin, for appellant.
Mortimer W. Solomon, for respondent.
The defendant herein moves for an order amending nunc pro tunc a notice of appeal taken from a judgment entered in the Municipal Court in favor of the plaintiff, by substituting the name "Abbotts Bakeries, Inc." instead of the name "Charles E. Abbott" which now appears therein as the name of the defendant. Upon the trial of the action this substitution was made by consent of the defendant. Plaintiff recovered a judgment and by inadvertence the defendant's notice of appeal filed with the clerk contained the name of "Charles E. Abbott" as defendant instead of "Abbotts Bakeries, Inc.," although correctly reciting the court, the amount of judgment and date of its entry. The defendant also filed an undertaking correctly describing the judgment and the parties thereto. The plaintiff was in no way misled by this misdescription of the defendant in the notice of appeal, and section 158 of the Municipal Court Code provides for just such contingencies, and gives the appellate court ample power to amend any "defects or omissions necessary to perfect an appeal, etc." The motion in this respect should, therefore, be granted. The moving papers herein also ask for a stay pending an appeal from an order of the Municipal Court vacating the above mentioned notice of appeal, and setting aside the undertaking and directing that an execution issue upon the judgment. It appears from the papers used on the motion that after twenty days had expired from the date of entry of the judgment the plaintiff moved for an order "directing the clerk of the court to issue an execution upon the judgment heretofore obtained and for an order vacating and setting aside the notice of appeal filed herein and vacating the undertaking on appeal also filed herein." This motion was contested, and upon the hearing was granted, and what the defendant deems an order was entered from which it has taken an appeal. A copy of this purported order entered upon the motion is handed up with the motion papers. It fails to comply with section 767 of the Code of Civil Procedure in that it contains no recital of the papers used upon the motion either by reference to number or otherwise. That it was not intended as a final order is evidenced by the statement contained therein that "under the circumstances the plaintiff is entitled to an order granting his prayer herein." So far as now appears there is no order from which an appeal can be taken. In view of the amendment to the notice of appeal granted herein, the grounds for an entry of an order vacating such notice has been removed and therefore no order should be entered.
Present: Lehman, Bijur and Finch, JJ.
Motion to amend the notice of appeal nunc pro tunc granted, and motion for stay denied. Temporary stay vacated.