City Bank Farmers Trust Co. v. Cohen

(dissenting). I dissent. The application for leave to enter a deficiency judgment having been made within the time limited by section 1083 of the Civil Practice Act, the proceeding did not become a nullity because the order directing service by mail upon the defendant specified, in consequence of a typographical error, an erroneous address of the defendant. That error, made by the plaintiff in good faith, was not a jurisdictional defect, but only an irregularity which the court, under section 105 of the Civil Practice Act, had the power to correct and should have corrected under the circumstances of this case, in the exercise of a sound discretion.

The plaintiff’s motion to set down for hearing, on a day certain, its pending application for leave to enter a deficiency judgment under section 1083 of the Civil Practice Act should have been granted.

Cohn, Callahan and Van Voorhis, JJ., concur in decision; Shientag, J., dissents in opinion in which Dore, J. P., concurs.

Order affirmed, with $10 costs and disbursements. [See post, p. 709.]

*657Order affirmed, with $10 costs and disbursements.