1. For want of a summons, or other writ. 2. For any fault or defect in process; or for misconceiving a process, or awarding it to a wrong officer. 3. For an imperfect or insufficient return of a sheriff or other officer; or because an officer has not subscribed a return, actually made by him 4. For a variance between the summons and complaint. 5. For a mispleading, insufficient pleading, or jeofail. 6. For want of a warrant of attorney by either party. 7. For the appearance, by attorney, of an infant party, if the verdict, report, or decision, or the judgment, is in his favor. 8. 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. 2 R. S. 424, 425, 87 (2 Edm. 442, 443), am'd. § 722. Such defects to be supplied. 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 amended, by the court wherein the judgment is rendered, or by an appellate court Id., 18. - $723. [Amended, 1877.] Amendments by the court; disregarding immaterial errors, etc. The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, plead ing, or other proceeding, by adding or striking out the name of a person as a party, or by correcting 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 facts 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. Co. Proc., 173, and the first clause of 176; the second clause of the latter section being included in 721, ante. 724. Relief against omissions, etc.; amendments to conform proceedings. The court may likewise, in its discretion, and upon such terms as justice requires, at any time within one year 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 supply an omis sion in any proceeding. 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. Id., 174, am'd. See 781, 783, and 784, post. Depew v. Dewey, 2 T. & C. 515; Simpson v. McKay, 3 id. 65; Gambling v. Haight, 58 N. Y. 623; Fawcett v. Vary, 59 id. 597; Fields v. Van Cott, 15 Abb. N. S. 349; Hamilton v. Third Ave. Ry. Co., 44 How. 294; Baldwin v. N. Y. & Har. Nav. Co., 4 Daly, 314; Risley v. Phoenix Bank, 2 Hun, 349; Cook v. Whipple, 55 N. Y. 150; Mott v. Lansing, 5 Lans. 516; Buckingham v. Dickinson, 54 N. Y. 682; Security Bank r. Bank of Com., 4 T. & C. 518; Jellinghaus v. N. Ins. Co., 5 Bosw. 678; Pettigrew v. Mayor, 17 How. 492; Macombe . Mayor, 17 Abb. 36; Baldwin v. Kimmell, 16 d. 355; Bebee v. Roberts, 3 E. D. Smith, 195; People v. Powers, 19 Abb. 99; Smith v. Johnson, 30 How. 374; Fish v. Ferris, 3 E. D. Smith, 568; Foley Alger, 4 id. 719; Onderdonk v. Ranlett, 3 Hill, 323; People v. County Judges, 13 How. 277. § 725. Returns by officers, etc.-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. 424 (2 Edm. 442). See Temporary Act, 5, subd. 6. §726. Papers lost or withheld; how supplied. Where an original pleading or paper is lost, or with held by any person, the court may authorize a copy to be filed and used, instead of the original. Co. Proc., 422. See Temporary Act, § 5, subd. 6. § 727. Order of court; when necessary to amend.A process, pleading, or record, shall not be altered, by the clerk or any other officer of the court, or by any other person, 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. 2 R. S. 425 (2 Edm 443), am'd. See Temporary Act, § 5, subd. 6. § 728. Disregarding defects in affidavits.-The want of a title, or a defect in the title, of an affidavit, does not impair it, if it intelligibly refers to the action or special proceeding, in which it is made. Co. Proc., 406. See Temporary Act, § 5, subd. 6. 729. Certain bonds, etc., when sufficient.-A bond or undertaking, required by statute to be given 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. 2 R. S. 556 (2 Edm. 576), am'd. See Temporary Act, 5, subd. 5. § 730. Amending defects in bonds, etc. Where such a bond or undertaking is defective, the court, officer, or body, that would be authorized to receive it, or to entertain 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. Id., 34, am'd. See Temporary Act, 5, subd 6. TITLE II. Tender, and other offers and requests to the adverse party. SEO. 731. Tender after suit. 732. Amount to be paid into court. Sec. 733. Effect of sufficient tender. 734. When to be deducted from recovery, etc. 735. Requiring admissions of genuineness of paper. 736. Offer to liquidate damages conditionally. 737. Effect of refusal of offer. 7. Defendant's offer to compromise; proceedings thereon. 740. Offer and acceptance, by whom subscribed. 731. Tender after suit. - Where the complaint demands judgment for a sum of 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. 553, ¿ 20 (2 Elm. 374), am'd. Duffy v. O'Donovan, 46 N. Y. 223. § 732. [Amended, 1877.] Amount to be paid into court. A tender, made as prescribed in the last section, does not avail the defendant, unless the money is 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. Becker r. Boon, 61 N. Y. 317; Brown v. Ferguson, 2 Denio, 196; Slack r. Brown, 13 Wend. 394. 733. Effect of sufficient tender. If it appears, upon the trial, that the sum so tendered was sufficient to pay the plaintiff's demand, or to make amends for 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. 554. H 21 and 22 (2 Edm. 574), consolidated. See Co. Proc., 385; post, 738. $734. When to be deducted from recovery, etc.— If the plaintiff proceeds in the action, after accepting the tender, the sum accepted must be deducted from the recovery, and judgment rendered for the residue, if any; and, if the tender and acceptance do not appear in the pleadings, a memorandum thereof must be annexed to the judgment-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. 2 R. S. 554, 23. $735. Requiring admission of genuineness of paper. 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 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. Co. Proc., part of 388. § 736. Offer to liquidate damages conditionally.— 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. Id., 386. Lippmann v. Petersberger, 9 Abb. 209. $737. [Amended, 1877.] Effect of refusal of offer. -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. Id., 387. Dusenberry v. Woodward 1 Abb. 443. 738. [Amended, 1877.] Defendant's offer to compromise; proceedings thereon. The defendant may, before the trial, serve upon the plaintiff's attorney, a written offer, to allow judgment 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 |