134 N. Y. 85. 76 N. Y. 596. 135 N.Y. 522. 141 Id. 76. 89 N.Y. 22. 24 N.Y.State Rep. 953. 24 Hun, 615. 88 N.Y. 500; S. For omitting to allege any matter, without proof of which the verdict, report, or decision ought not to have been rendered. 9. For a mistake in the name of a party or other person; or in a sum of money; or in the description of property; or in reciting or stating a day, month, or year; where the correct name, sum, description, or date has been once rightly stated, in any of the pleadings or other proceedings. 10. For a mistake in the name of a juror or officer. 11. For an informality in entering judgment, or making up the judgment-roll. 12. For an omission on the part of a referee to be sworn; or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced. $722. Each of the omissions, imperfections, defects, and variances, specified in the last section, and any other of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or the trial must, when necessary, be supplied, and the proceeding amer ded, by the court wherein the judgment is rendered, or by at appellate court. § 723. [Am'd 1877.] The court may, upon the trial, or at any other stage of the action, before or after judgment, it furtherance of justice, and on such terms as it deems just amend any process, ple or other proceeding, by adding or striking out the name a person as a party, or by correc ting 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 defence, by conforming the pleading or other proceeding to the Tacts proved. And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party. 50 N. Y. Super. (Ct. J. & S.) 301; 34 Hun, 431; 38 Id. 528; 107 N. Y. 645 4 N. Y. Supp. 804; 121 N. Y. 546; 122 Id. 461. 135 N. Y. 522; 137 Id., 471; 141 Id., 76. 724. The court may likewise, in its discretion, and upon 6 Abb. N. such terms as justice requires, at any time within one year C. 378. 78 N.Y.362. 15 Week. Dig. 106. 62 How. Pr. 460. 90 N.Y. 546. 120 N. Y. 433 after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supp an omission in any proceeding. Where a proceeding, tak by a party, fails to conform to a provision of this act, the court may, in like manner, and upon like terms, permit 25 amendment thereof, to conform it to the provision. 17 Week. Dig. 354; 18 Id. 510; 14 Abb. N. C. 96; Id. 510; 35 H 162; 3 N. Y. Supp. 120; 6 Id. 58!; 28 N. Y. State Rep. 474; 112 N.! 325; 119 Id. 414; 29 Abb. N. C. 404. $ 725. A court, to which a return is made by a sheriff other officer, or by a subordinate court or other tribunal, mas in its discretion, direct the return to be amended, in matte of form., either before or after judgment. 726. Where an original pleading or paper is lost. withheld by any person, the court may authorize a copy to filed and used, instead of the original. $727. A process, pleading, or record, shall not be alter by the clerk or any other officer of the court, or by any oth erson, without the direction of the court, or of another court competent authority; except in a case where a party, his attorney, is specially authorized by law to amend a eading. 60 How. Pr. $728. The want of a title, or a defect in the title, of an fidavit, does not impair it, if it intelligibly refers to the act- 205. nor special proceeding, in which it is made. § 729. A bond or undertaking, required by statute to be ven by a person, to entitle him to a right or privilege, or to ke a proceeding, is sufficient, if it conforms substantially to e form therefor, prescribed by the statute, and does not ry therefrom, to the prejudice of the rights of the party, whom, or for whose benefit it is given. § 730. Where such a bond or undertaking, is defective, 76 N.Y. 596. e court, officer, or body, that would be authorized to reive it, or to entertain a proceeding in consequence thereof, it was perfect, may, on the application of the persons who ecuted it, amend it accordingly; and it shall thereupon be lid, from the time of its execution. TITLE II. nder, and other offers and requests to the adverse party 31. Tender after suit. 32. Amount to be paid into court. 33. Effect of sufficient tender. 35. Requiring admission of 2737. Effect of refusal of offer. thereon. 739. Plaintiff's offer to compro- 731. Where the complaint demands judgment for a 119 N. Y. 561. n of money only; and the action is brought to recover a n certain, or which may be reduced to certainty by calation; or to recover damages for a casual or involuntary sonal injury, or a like injury to property; the defendant, his attorney, may, at any time before the trial, tender to plaintiff, or his attorney, such a sum of money, as he conves to be sufficient to make amends for the injury, or to y the plaintiff's demand; together with the costs of the Lion, to that time. 3 Civ. Pro. 110 NY. 101: 732. [Am'd 1877.] A tender, made as prescribed in the t section, does not avail the defendant, unless the money 152. accepted, or is paid into court and notice thereof in writing ved upon the plaintiff's attorney before the trial and withten days after the tender. If the plaintiff takes out the ount paid in, he accepts the tender. 733. If it appears, upon the trial, that the sum so tened was sufficient to pay the plantiff's demand, or to make ends for the injury, and also to pay the costs of the action, he time of the tender, the plaintiff cannot recover costs or rest, from the time of the tender, but must pay the dedant's costs from that time. 734. If the plaintiff proceeds in the action, after acceptthe tender, the sum accepted must be deducted from the overy, and judgment rendered for the residue, if any; if the tender and acceptance do not appear in the plead 119 Id. 561. ings, a memorandum thereof must be annexed to the judg ment-roll. The plaintiff's right to recover costs, and his liability to pay costs to the defendant, are determined by the amount of the residue. $735. The attorney for a party may, at any time before the trial, exhibit to the attorney for the adverse party, a paper, material to the action, and request a written admis sion of its genuineness. If the admission is not given, with four days after the request, and the paper is proved or ad mitted on the trial, the expenses incurred by the party ex hibiting it, in order to prove its genuineness, must be ascer tained at the trial, and paid by the party refusing t admission; unless it appears to the satisfaction of the court that there was a good reason for the refusal. § 736. In an action to recover damages for breach of contract, the defendant's attorney may, with the answe serve upon the plaintiff's attorney, a written offer, that, the defendant fails in his defence, the damages may be sessed at a specified sum. If the plaintiff serves notice, the he accepts the offer, with or before the notice of trial, a damages are awarded to him on the trial, they must assessed accordingly. $737. [Am'd 1877.] If the plaintiff does not accept: offer, he can not prove it, upon the trial. But if the damage awarded to him, do not exceed the sum offered, the defen ant is entitled to recover the expenses, necessarily incur by him in preparing for the trial of the question of damag The expenses must be ascertained and the amount there determined, by the judge, or the referee, by or before wh4 the cause is tried. $738. [Am'd 1877.] The defendant may, before thetri serve upon the plaintiff's attorney, a written offer, to all judgment to be taken against him, for a sum, or property. to the effect, therein specified, with costs. If there are t or more defendants, and the action can be severed, a offer may be made by one or more defendants, against wh a separate judgment may be taken. If the plaintiff, wa ten days thereafter, serves upon the defendant's attorney written notice that he accepts the offer, he may file the s mons, complaint, and offer, with proof of acceptance, thereupon the clerk must enter judgment accordingly notice of acceptance is not thus given, the offer cannot given in evidence upon the trial; but, if the plaintiff fa obtain a more favorable judgment, he cannot recovere from the time of the offer, but must pay costs from 1time. § 739. [Am'd 1877.] Where the defendant sets up a c terclain, to an amount greater than the plaintiff's clai sufficient to reduce the plaintiff's recovery below fifty do the plaintiff may serve, upon the defendant's attorne written offer, to allow judgment to be taken against him a specified sum, with costs, or against the defendant f specified sum, and against the plaintiff for costs. If the fendant, within ten days thereafter, serves, upon the plair attorney, notice that he accepts the offer, either party file the summons, complaint, answer, and offer, or e thereof and proof of acceptance; and thereupon the must enter judgment accordingly. If notice of acceptan hot thus given, the offer cannot be given in evidence, upon he trial; but, if the recovery is not more favorable to the Cefendant than that so offered he will not be entitled to reover costs from the time of the offer, but must pay costs rom that time. $740. Unless an offer or an acceptance, made as precribed in either of the last four sections, is subscribed by e party making it, his attorney must subscribe it, and auex thereto his affidavit, to the effect that he is duly authored to make it, in behalf of the party. $741. (Repealed 1877.) $742. (Repealed 1877.) TITLE III. ayment of money into court, and cire and disposition § 743. A party bringing money into court, pursuant to e direction of the court is discharge l thereby from all furor liability, to the extent of the money o paid in. § 744. [Am'd 1992.] The comptroller of the State of w York shall supervise the administration of all the fin's id into any court of record, and shall prescribe regulations rules for the care and disposition thereof, which shall be served by all parties interested th rein, unless the cont ving jurisdicti n over the same, shall make different ditions, by special order daly entered in accordance with tion seven hundred a .d forty-seven of this act. $1085 Consol. Act. S$ 1161, 1265 $ 745. Unless the court otherwise specially directs, money paid into court, must be paid, either direct y, or by the officer who is required by law first to receive it, to the county treasurer of the county, where the action is triable. Where it is pai i to an officer, other than the county treasurer, he must pay it to the county treasurer, within four days after he receives it. In the city of New York, he must pay it to the chamberlain, within two days after he receives it. A bond, mortgage, or other security, or a certificate or transfer of stock, taven upon the investment of money paid into court, must be taken to the county treasurer of the county where the fund belongs, in his name of office; or to suci other county treasurer, as the court specially directs. But this and the next section do not prevent the court, upon the application of a party to an action, from directing in what manner or place, money paid into court in the action sha!! be deposited or invested. § 746. [Am'd 1892.] All funds or moneys paid int court shall be deposited in such savings banks, trust conpany, bank, banking association or with such banker a shall be designated by the Comptroller, as soon as receive by the custodian thereof. But the money must be depos ited in the county where the fund belongs, where it can done conveniently and safely and with advantage to the par ties interested. The depositaries designated shall pay a far rate of interest and before receiving any such deposits, sha give to the people of the State, a good and sufficient bond with two or more sureties, ia such form as the attorney ge eral shall prescribe, such bond to be approved by the count judge of the county in which such savings bank, bank, trust company, bank association, or banker shall be located, and by the comptroller of the State, and fil- d in the office of the comptroller. $ 747. [Am'd 1892.] Each court may direct th Consol. Act. money paid into that court in any action or proceedi brought therein, or any bond, mortgage or other securit which represents property belonging to any suit or part interested therein, may be paid out, transferred, invested re-invested, or deposited in any manner or form that a pears to it best for the interests of the owners thereof. I such directions must be embodie | in an order or decree said court, founded upon proper and sufficient evidences isfactory to the court that such disposition of the prop is best for the interests of the owners thereof or parties terested therein. SS 1161, 1265 Consol. Act. $748. [Am'd 1892.] The provisions of the last ceding section shall apply to all courts of record of the Sts: |