Summary
In People v. Schoff, 266 App. Div. 158, 42 N.Y.S.2d 216 (4th Dept. 1943), the defendant intended to appeal to the appellate division of the fourth department as required, but inadvertently specified third department in the notice of appeal. She then moved for an order amending the notice of appeal by striking the words "third department" and inserting in place thereof the words "fourth department.
Summary of this case from Zimney v. North Dakota Crime Victims Reparations BoardOpinion
May 12, 1943.
Joseph J. Wallace for appellant.
Eric J. Lake for respondent.
Present — CROSBY, P.J., CUNNINGHAM, TAYLOR, DOWLING and McCURN, JJ.
The People of the State of New York recovered a judgment against the defendant in an action which was tried in Lewis County, New York. The judgment in the action was entered in the clerk's office of that county. The defendant seasonably appealed from said judgment by serving upon the attorney for the People and the county clerk of Lewis County and by filing in his office a written notice to that effect. (Civ. Prac. Act, § 562.) The defendant intended to appeal to the Appellate Division of the Fourth Department as she was required to do since Lewis County is embraced within the Fourth Department. (Civ. Prac. Act, § 617.) The defendant specified the Third Department in her notice of appeal. She now moves for an order amending her notice of appeal by striking therefrom the words "Third Department" and inserting in place thereof the words "Fourth Department." The moving papers indicate that the words "Third Department" were inserted in said notice of appeal by excusable inadvertence and mistake. A notice of appeal need not specify the court to which the appeal is taken. But, all papers subsequent to the notice of appeal must be entitled in the appellate court. (Civ. Prac. Act, § 561.) This court has the power to grant the relief prayed for nunc pro tunc as of the date of the service and filing of the notice of appeal. ( Rothenberg v. Metzger, 227 App. Div. 444; Waldo v. Schmidt, 200 N.Y. 199; Vose v. Conkling, 159 App. Div. 201; Civ. Prac. Act, §§ 105, 107.) The mistake could have been disregarded as immaterial since it affected no substantial right of the People of the State of New York. ( Rosenberg v. General Realty Service, Inc., 259 N.Y. 123; McNulty v. Kammerer, 259 N.Y. 562.) Procedural orders made by an Appellate Division in which an appeal is erroneously pending, where no objection to its jurisdiction is raised, may be irregular but they are not void, and the irregularity may be waived. ( Hill v. Burke, 62 N.Y. 111. ) The necessity of this motion could have been obviated by simply filing the record on appeal in this court when the mistake was discovered or the defendant could have moved at Special Term for the relief asked here.
An order should be granted amending the notice of appeal nunc pro tunc as of the date of serving and filing the same by striking out the words "Third Department" and by inserting in place thereof the words "Fourth Department."
All concur.
Motion to amend notice of appeal so as to read "Fourth Department" instead of "Third Department" granted.