Josephine Johnson, Respondent, v. May F. Guernsey and Another, as Administratrices, etc., of Jared B. Flisher, Deceased, and Another, Appellants

Josephine Johnson, Respondent, v. May F. Guernsey and Another, as Administratrices, etc., of Jared B. Flisher, Deceased, and Another, Appellants. Fourth. Department, May 9, 1923. Appeal — exceptions to decision — Appellate Division has power to permit filing nunc pro tunc. While a motion to file exceptions to a decision nunc pro tunc should be made at Special Term, the Appellate Division has power to entertain such a motion and in this case it will grant the motion in the interests of justice to expedite the appeal, since the delay has not prejudiced the defendant. Motion by respondent, Josephine Johnson, to dismiss appeal and motion by appellants, May F. Guernsey and another, for permission to file exceptions to decision nunc pro tune. Rice & Ross, for the appellants. Pickard & Bodine, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This is a motion to permit defendants to file exceptions to decision nunc pro tunc. Power is given the Supreme Court to entertain this motion in section 98 of the Civil Practice Act. While this motion should have been made to the Special Term, we have unquestionable power to entertain it (Matter of Barkley, 42 App. Div. 597; Matter of Mitchel v. Cropsey, 177 id. 663) and will do so in this particular instance to complete the record and expedite the appeal. The omission was due to a misreading of the referee’s letter, and the delay has not prejudiced the defendants. In the interests of justice the omission should be supplied. The motion, therefore, should be granted upon payment to the plaintiff of ten dollars costs. All concur. Motion to dismiss appeal granted, unless appellants shall file and serve printed briefs by May twelfth and be ready for argument on May fifteenth. Motion to permit defendants to file exceptions to decision nunc pro tunc granted, upon payment to the plaintiff of ten dollars costs.