Code Pro., § 173, and first part of § 176; Wait's Code, 323, 334; 2 Wait's Pr. 506-508; 4 id. 666. The provision authorizing the allow ance of an amendment of the plead ings, by conforming them to the facts proved, is expressly confined to cases where the amendment does not change substantially the claim or defense. Joslyn v. Joslyn, 9 Hun, 388. See, also, Barnes v. Quigley, 59 N. Y. (14 Sick.) 265. Where the propriety of setting up a counterclaim first appeared upon a trial before a referee, it was held, that the defendant might, after the trial was suspended by an order staying proceedings, apply to the special term, on motion, and obtain an order permitting him to amend his answer by setting up that defence. Mitchell v. Bunn, 2 N. Y. Sup. Ct. (T. & C.) 486. See, also, Bennett v. Lake, 47 N. Y. (2 Sick.) 93. As a general rule, it is pretty much a matter of course to permit parties to amend their pleadings before trial, when the amendment will produce no delay of the trial, nor work any especial hardship to the adverse party. Gilchrist v. Gilchrist, 44 How. 317. The power of a referee, like the power of a judge at the trial, to allow amendments is restricted to such as do not change substantially the claim or defence; and the exercise of the power is so far within the discretion of the judge or referee, that, although it may be reviewed on appeal, the court of review will not disturb the decision, whether it allows or disallows the amendment, unless the power has manifestly been unwisely exercised. Dougherty v. Vallatton, 6 J. & Sp. 455. And see McGraw v. Godfrey, 14 Abb. N. S. 397; S. C. affirmed, 16 id. 358; 56 N. Y. (11 Sick.) 610; Gambling v. Haight, 58 N. Y. (13 Sick.) 623; Getty v. Spaulding, id. 636; S. C. below, 3 N. Y. Sup. Ct. (T. & C.) 174; S. C., 1 Hun, 115; Melvin v. Wood, 3 Keyes, 523; S. C., 3 Abb. Ct. App. 272; 4 Abb. N. S. 438. The provision of § 173, Code Pro., authorizing amendments by the court, was held applicable to proceedings in justices' courts, and a misjoinder of a plaintiff might be cured by amendment, by striking out his name from the proceedings before or after judgment. Lapham v. Rice, 55 N. Y. (10 Sick.) 472; Lowe v. Romwell, 5 Daly, 17. See, as further illustrating the application of the provision of this section with respect to amendments, Angell v. Cook, 2 N. Y. Sup. Ct. (T. & C.) 175; Clemons v. Davis, 6 id. 523; S. C., 4 Hun, 260; Freer v. Stotenbur, 2 Abb. Ct. App. 189; S. C., 2 Keyes, 467; Lathrop v. Godfrey, 6 N. Y. Sup. Ct. (T. & C.) 96; S. C., 3 Hun, 739; Wood v. Martin, 66 Barb. 241; Barber v. Marble, 2 N. Y. Sup. Ct. (T. & C.) 114; Howk v. Eckert, 4 id. 300; S. C., 2 Hun, 113; Mc Coun v. New-York & Hudson River R. R. Co., 50 N. Y. (5 Sick.) 176; Viadero v. Viadero, 7 Hun, 313. against sions, etc.; ments to proceed § 724. The court may likewise, in its discretion, and upon such Relief terms as justice requires, at any time within one year after notice omisthereof, relieve a party from a judgment, order, or other proceed- amending, taken against him through his mistake, inadvertence, surprise, conform or excusable neglect; and may supply an omission in any proceeding. Ings. Where a proceeding, taken by a party, fails to conform to a provision of this act, the court may, in like manner, and upon like terms, permit an amendment thereof, to conform it to the provision. Code Pro., § 174, amended; Wait's Code, 332, 333. See Security Bank v. Bank of Commonwealth, 4 N. Y. Sup. Ct. (T. & C.) 287; S. C., 2 Hun, 287; 48 How. 135; Bouton v. Bouton, 42 id. 11; McCall v. McCall, 54 N. Y. (9 Sick.) 541, 548; Depew v. Dewey, 46 How. 441, 447. Where the affidavit, that no answer or demurrer has been served, filed with the clerk, for the purpose of per fecting a judgment by default, is properly sworn to before a proper officer, who neglects to sign the jurat, and the omission is not discovered until after the entry of judgment, the court has power, and it is within its discretion, to permit the officer to sign, nunc pro tunc; and the exercise of this discretion is not reviewable in the court of appeals. Fawcett v. Vary, 59 N. Y. (14 Sick.) 597. Returns by officers etc. Papers lost or § 725. A court, to which a return is made by a sheriff or other officer, or by a subordinate court or other tribunal, may, in its discretion, direct the return to be amended, in matter of form, either before or after judgment. 2 R. S. 442, § 5. § 726. Where an original pleading or paper is lost, or withheld withheld; by any person, the court may authorize a copy to be filed and used, how sup- instead of the original. plied. Order of court; when Code Pro., § 422. See Wait's Code, 775. § 727. A process, pleading, or record, shall not be altered, by the clerk or any other officer of the court, or by any other person, necessary without the direction of the court, or of another court of competent authority; except in a case where a party, or his attorney, is specially authorized by law to amend a pleading. to amend. Disregarding 2 R. S. 443, § 9, amended. § 728. The want of a title, or a defect in the title, of an affidefects in davit, does not impair it, if it intelligibly refers to the action or special proceeding, in which it is made. affidavits. Certain bonds, sufficient. Code Pro., § 406. See Wait's Code, 768; 4 Wait's Pr. 580, 672. § 729. A bond or undertaking, required by statute to be given etc., when by a person, to entitle him to a right or privilege, or to take a proceeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit, it is given. Amend ing defects in 2 R. S. 576, § 33, amended. See Hill v. Burke, 62 N. Y. (17 Sick.) 111; Wheaton v. Fay, id. 275. $ 730. Where such a bond or undertaking is defective, the court, officer, or body, that would be authorized to receive it, or to enterbonds, etc. tain a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accordingly ; and it shall thereupon be valid, from the time of its execution. 2. R. S. 576, § 34, amended. TITLE II. Tender, and other offers and requests to the adverse party. SEC. 731. Tender after suit. 732. Amount to be paid into court. 733. Effect of sufficient tender. 734. When to be deducted from recovery, etc. 735. Requiring admission of genuineness of paper. 736. Offer to liquidate damages conditionally. 737. Effect of refusal of offer. 738. Defendant's offer to compromise; proceedings thereon. 739. Plaintiff's offer to compromise counterclaim; proceedings thereon. 740. Offer and acceptance, by whom subscribed. after suit. § 731. Where the complaint demands judgment for a sum of Tender money only; and the action is brought to recover a sum certain, or which may be reduced to certainty by calculation; or to recover damages for a casual or involuntary personal injury, or a like injury to property; the defendant, or his attorney, may, at any time before the trial, tender to the plaintiff, or his attorney, such a sum of money, as he conceives to be sufficient to make amends for the injury, or to pay the plaintiff's demand; together with the costs of the action, to that time. 2 R. S. 574, § 20, modified. See 2 Wait's Pr. 405, 579. to be court. § 732. [Amended, 1877.] A tender, made as prescribed in the Amount last section, does not avail the defendant, unless the money is paid into accepted, or is paid into court and notice thereof in writing served upon the plaintiff's attorney before the trial and within ten days after the tender. If the plaintiff takes out the amount paid in, he accepts the tender. New provision. See Becker v. Boon, 61 N. Y. (16 Sick.) 317. sufficient § 733. If it appears, upon the trial, that the sum so tendered Effect of was sufficient to pay the plaintiff's demand, or to make amends for tender. the injury, and also to pay the costs of the action, to the time of the tender, the plaintiff cannot recover costs or interest, from the time of the tender, but must pay the defendant's costs from that time. 2 R. S. 574, §§ 21 and 22, consolidated. See 2 Wait's Pr. 585-587. to be from § 734. If the plaintiff proceeds in the action, after accepting the When tender, the sum accepted must be deducted from the recovery, and deducted judgment rendered for the residue, if any; and, if the tender and recovery. acceptance do not appear in the pleadings, a memorandum thereof etc. must be annexed to the judgment-roll. The plaintiff's right to Requiring ad genuineness of paper. recover costs, and his liability to pay costs to the defendant, are determined by the amount of the residue. 2 R, S. 574, § 23. § 735. The attorney for a party may, at any time before the mission of trial, exhibit to the attorney for the adverse party, a paper, material to the action, and request a written admission of its genuineness. If the admission is not given, within four days after the request, and the paper is proved or admitted on the trial, the expenses, incurred by the party exhibiting it, in order to prove its genuineness, must be ascertained at the trial, and paid by the party refusing the admission; unless it appears, to the satisfaction of the court, that there was a good reason for the refusal. Offer to liquidate damages condi tionally. Effect of refusal of offer. Defend ant's offer to compromise; ings thereon. From Code Pro., § 388. See Wait's Bary v. Stanley, 5 Daly, 412; Smith v. § 736. In an action to recover damages for breach of a contract, the defendant's attorney may, with the answer, serve upon the plaintiff's attorney, a written offer, that, if the defendant fails in his defence, the damages may be assessed at a specified sum. If the plaintiff serves notice, that he accepts the offer, with or before the notice of trial, and damages are awarded to him on the trial, they must be assessed accordingly. Code Pro., § 386. See 2 Wait's Pr. 588. § 737. [Amended, 1877.] If the plaintiff does not accept the offer, he cannot prove it, upon the trial. But if the damages, awarded to him, do not exceed the sum offered, the defendant is entitled to recover the expenses, necessarily incurred by him in preparing for the trial of the question of damages. The expenses must be ascertained, and the amount thereof determined, by the judge, or the referee, by or before whom the cause is tried. Code Pro., § 387. See Wait's Code, 734; 2 Wait's Pr. 589, b. § 738. [Amended, 1877.] The defendant may, before the trial, serve upon the plaintiff's attorney, a written offer, to allow judgment proceed to be taken against him, for a sum, or property, or to the effect, therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serves upon the defendant's attorney, a written notice that he accepts the offer, he may file the summons, complaint, and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. Code Pro., part of $385, amended. See Wait's Code, 732–734; 3 Wait's Pr. 672, et seq. The provision giving the defendant costs where the plaintiff does not accept an offer of judgment, and fails to obtain a more favorable one, has been held applicable to foreclosure suits where a personal judgment against the obligor for any deficiency is asked. Bathgate v. Haskin, 63 N. Y. (18 Sick.) 261. And see Penfield v. James, 12 Abb. N. S. 247. In determining whether the judgment obtained is more favorable than that offered, interest cannot be added to the sum offered, Johnston v. Catlin, 57 N. Y. (12 Sick.) 652; but this rule is only applicable to actions where the damages are unliquidated. Bathgate v. Haskin, supra. See Sturgis v. Spofford, 58 N. Y. (13 Sick.) 103; Hawley v. Davis, 5 Hun, 642. The costs to which the plaintiff is entitled, if he fails to obtain a more favorable judg- That part of the section requiring costs offer to promise claim; ings § 739. [Amended, 1877.] Where the defendant sets up a coun- Plaintiff's terclaim, to an amount greater than the plaintiff's claim, or sufficient comto reduce the plaintiff's recovery below fifty dollars, the plaintiff countermay serve, upon the defendant's attorney, a written offer, to allow proceedjudgment to be taken against him, for a specified sum, with costs, thereon. or against the defendant for a specified sum, and against the plaintiff for costs. If the defendant, within ten days thereafter, serves, upon the plaintiff's attorney, notice that he accepts the offer, either party may file the summons, complaint, answer, and offer, or copies thereof, and proof of acceptance; and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence, upon the trial; but, if the recovery is not more favorable to the defendant than that so offered, he will not be entitled to recover costs from the time of the offer, but must pay costs from that time. Code Pro., latter part of § 385, amended. See Wait's Code, 732; 3 Wait's Pr. 681. accept whom § 740. Unless an offer or an acceptance, made as prescribed in offer and either of the last four sections, is subscribed by the party making it, ance, by his attorney must subscribe it, and annex thereto his affidavit, to the subeffect, that he is duly authorized to make it, in behalf of the party. New. § 741 and 742 repealed, 1877. scribed. |