Hall v. Marvin

Williams, J.: The judgment should he reversed, with costs, and the demurrers overruled, with costs, with leave to plead over on payment of such costs. The action was brought upon a promissory note made by the defendants for $200 and interest, payable to the order of plaintiff one year after date. The complaint alleged the note was made April 25, 1904; that it became due and payable April 25, 1905; that $83.50 had been paid and indorsed on it, and the balance remained unpaid ; that plaintiff demanded ■ payment of the note when it became due, which was refused; that there was due $194.99, with interest from May 5, 1909, for which judgment was demanded. A copy of the note was set out correctly in the original complaint, as dated April 25, 1904, the day it was given, but in making the copies -of the complaint which were served on the defendants; by ■ mistake the year in the date was written 1909 instead of 1904 as in the original. This was a mere clerical error which could not have misled the' defendants. They must have known when they brought their copies of the summons and complaint to their counsel that the note was really dated in 1904; that the note was given on that day; that it became due and payable one year later, in 1905, and that payment of it was then demanded, and refused, as.alleged in the complaint. Apparently, discovering this error in the date of the note in their papers, an opportunity presented itself to delay the collection of the note and to secure some costs from the plaintiff ; they appeared by separate attorneys and served these demurrers. I suppose plaintiff’s attorney knew nothing about this clerical mistake he had made, and not understanding why demurrers should be served, he moved for judgment on account of the frivolousness of the demurrers. Upon the hearing before the Special Term the [77] mistake was discovered by plaintiff’s attorney. He insisted it was a mere clerical error and should be disregarded, but the court did not regard the case as one where it could quite be said the demurrers were frivolous and denied the motion. Then, subsequently, the demurrers were passed upon and the court made the decision upon which the judgment appealed from was entered. The original complaint and the note have been produced here and there is no question but that the date in both was 1904. The judge in his memorandum made on the decision of the demurrers states that the original complaint was before him and examined by him. This seems to be a miscarriage of justice, and that the only benefit that can accrue to any one is the costs these two firms of attorneys hope to get out of the plaintiff. They must have understood it to be a mere clerical mistake after consultation with their clients and could have easily called the attention of the plaintiff’s attorney to it and have allowed it to be corrected, and then if defendants had any real defense to the action, they could have answered and submitted the issue to a court or a jury. I do not think the court should encourage this sort of practice by attorneys, and I do not think it is necessary to do it in this case. As early as 1853, in the case of Chamberlin, v. Kaylor (2 E. D. Smith, 134), it was held by the Court of Common Pleas of New York city that the court on demurrers would overlook mere clerical errors. In that case the letters ” was omitted from the word “ defendant”, in one of the allegations. It was held this was not ground for demurrer. In 1888 the Eiftlr Department, General Term, in Kenney v. N. Y.C & H.R.R. R. Co. (49 Hun, 535), held in a death negligence case that a mistake in alleging that the def end-wit instead of decedent left a widow surviving, did not render the complaint demurrable. There was no allegation that the decedent left any widow or next of kin at all, but the use of the wrong word was a mere clerical error in drawing or copying the complaint. Ho one could have been misled, and the error should have been disregarded, and the complaint considered as alleging that the decedent and not the defendant (the New York Central Railroad Company) left a widow and next of kin (citing Code Civ. Proc. §723 and Roussel v. St. Nicholas Ins. Co., 9 J. & S. 279, in which case the mistake of alleging the fire was not caused by any accepted [78] instead of by any excepted risk, was held by the New York Superior Court to be a mere clerical error, misleading no one, and to be disregarded on demurrer.) ' In 1906 the Appellate Term of the Supreme Court in New York in Burstein v. Levy (49 Misc. Rep. 469) held that the use of the word plaintiff, where the word' defend-cunt should have been used, was a mere clerical error and should be disregarded on appeal, and in the same year the First Department, Appellate Division, held in King v. Mail & Express Co. (113 App. Div. 90) that the use of the- word plaintiff where the words plaintiff’s intestate should have been used, was obviously a mere clerical error and would be disregarded on demurrer (citing Code Civ. Proc. § 723, and Kenney v. N. Y. C. & H. R. R. R. Co., supra). Other cases might be referred to, but these are sufficient to show' what the law is and 'has been for over fifty years. I think the principle is applicable here. The defendants and their attorneys cannot with any reason claim they were misled; that they did not understand this using of the figure " 9” where the figure “4” should have been used, was a mere clerical error, and I cannot, under the circumstances here, consent to allow them to take the large costs that have been incurred .from the plaintiff upon such a flimsy claim as is made here. McLennan, P. J., concurred; Kruse, J., concurred in result in separate memorandum; Spring and Robson, JJ., dissented in. an opinion by Spring, J.