Hommeyer r. Beere. This action was brought to recover damages for personal injuries resulting from defendant's negligence. At the time of its commencement, the plaintiff being a poor person and unable to pay counsel fees, it was agreed be tween him and his attorney, that the latter should have and be entitled to the costs recovered in this action, if any, and for his compensation for his services in said action, beside a counsel fee, and should have a lien upon the judg ment for the same. The action was prosecuted by said attorney to final judgment in favor of the plaintiff for $200 damages, $110 costs, and $26.23 disbursements; judg ment was duly entered, and notice of entry thereof served upon defendant's attorney. After the expiration of a stay of thirty days obtained by defendant, his counsel requested the plaintiff's attorney to issue execution, as the defendant would not appeal, but intended to pay such judgment in satisfaction, and said attorney consented. Thereafter, before the execution was returned, the plaintiff's attorney was taken ill and did not return to his office until October 17, 1887. In the meantime; his clerks being in charge, he directed said clerk to collect from the defendant the judg ment against him, and said clerk collected the sum of $50, and at the time of such collection informed the defenaant of the lien of said attorney upon the judgment, and that all moneys must be paid to said attorney or his clerk and not to the plaintiff. It also appeared the plaintiff was a poor man and unable to pay counsel fee, and that, unless the attorney's lien upon said judgment was secured and protected, he would lose his entire compensation for services; that he (said attorney) employed counsel to attend at the trial of this action, for which he is bound to pay the sum of $50; that, during his sickness and absence from his office, the defendant obtained from the plaintiff the satis faction of the judgment herein without the payment of anything whatever; that at the time he secured such satisfaction, he, by simply giving the plaintiff a note to pay the sum of $75, which note is unpaid, and, which the plaint Estate of Soule. iff's attorney swears he believes, is worthless; that the full amount paid to the defendant for the satisfaction of a judgment for $336.23, was only the sum of $50. C. D. Rust, for plaintiff, for the motion. William II. Myer, for defendant. opposed, LAWRENCE, J.-Motion granted (see Coster v. Greenpoint Ferry Co., 5 N. Y. Civ. Pro. 146; Ackerman v. Ackerman, 14 Abb. Pr. 229). ESTATE OF LYMAN SOULE, DECEASED. SURROGATE'S COURT, CAYUGA COUNTY, NOVEMBER, 1887. SS 721-730, 2517, 2538.. Surrogate's court-Amendment of citation in—When court has jurisdiction although citation defective. The rules relating to amendments in courts of record prescribed by the Code of Civil Procedure, §§ 721-780, are applicable to proceedings in surrogate's courts. [2] Where a petition for the revocation of the probate of a will set forth all necessary facts, and the prayer thereof conformed to the requirements of the statute, but the citation issued thercon was directed to the executors named in the will as individuals without their oficial title,-Held, that the surrogate's court thereby acquired jurisdiction over such executors and had power to amend the citation by inserting their official title; [3] that the objection being partly technical and not reaching the merits of the proceedings, the court should exercise this power. [1] Bank of Havana v. Magee (20 N. Y. 355), [4] Risley r. Wightman (13 Hun, 163), [5] Tasker v. Wallace (6 Daly, 364), [7] Tighe v. Pope (16 Hun, 180), [8] Haddow v. Lundy (3 T. & C. 777); [] Stilwell v. Carpenter (62 N. Y. 639), [13] followed. Estate of Soule. Phillips . Melville (10 Hun, 211), [8] New York State Monitor Milkpan Company e. Remington Agricultural Company (25 Han 475), as reversed, 89 N. Y. 22), [10] Van Cott v. Prentice (101 N. Y. 54), [11] Fountain v. Carter (2 Dem. 313), [12] distinguished. It is the duty of the court to disregard any error or defect in proceedings which do not affect the substantial right of parties. [3] The test as to whether the amendment of a process is proper under the Code appears to be, whether the character of the action or proceeding will thereby be changed, and if not, and the proper parties in interest have ha i due notice, any amendment may be made in the names or description of parties, which will conform to the intention as shown in the pleading; [15] and it seems, the rule laid down in the earlier cases was that process was not amendable where it appeared void upon its face, and that it was held void for what it contained but not for the omission of some essential requirement. [14]. (Decided November, 1887.) Motion by executors to dismiss proceedings on the ground that the court has not jurisdiction of the necessary parties or subject matter. The will of the decedent, Lyman Soule, and codicils thereto were admitted to probate by the surrogate of Cayuga county, on June 28, 1886. On March 25, 1887, a petition for the revocation of the said probate was duly filed, in which the grounds upon which it was demanded were fully specified, and which set forth the names of the executors of said will, who have all duly qualified, and of the legatees named therein, and also alleged that the petitioner was an heir at law and next of kin, as well as legatee, and, as such, interested in the estate of the decedent, and prayed for a decree revoking said probate and for such other and further relief as may be just, and "that the executors, devisees and legatees named in said will and codicils, and all persons who are parties to the proceedings in which said probate was granted, be required to show cause why said probate should not be revoked," etc. On the same day, a citation was issued on said petition by the surrogate's court of Cayuga county directed to all the Estate of Soule. parties named therein, the name of the exccutors being first given, each one being repeated among the other names, but they not being anywhere in the citation designated as executors. On June 7, 1887, the return-day named in the citation, the petitioner and certain of the parties appeared; special guardians were appointed for infant parties, and the proceeding was adjourned until July 6, 1887, when the executors, who had theretofore not appeared either as executors or individually, appeared generally by counsel solely for the purpose of making this motion. II. V. Howland, for executors and motion. M. M. Water, and Woodin & Warren, for petitioner, opposed. W. E. Hughitt and M. A. Knapp, for legatees. W. R. Hopkins and H. E. Hills, special guardian for infant parties. TELLER, Surr.-The question presented by the motion to dismiss this proceeding is, whether this court has any jurisdiction of the necessary persons or subject matter. It is contended by the moving parties that the executors not being named as such in the citation, there has been an utter failure to comply with the statute by which the authority of this court is conferred. There is no contention that the petition does not set forth the necessary facts, or that the prayer thereof does not conform to the requirements of the statute, and had the citation followed the demands of the petition, the motion would have had no foundation. The petition was filed within the time prescribed by law. By section 2517 of the Code of Civil Procedure, it is enacted that "the presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of this act, which limits the time for the commencement thereof. But, in order to entitle the petitioner to the benefit of this Estate of Soule. section, a citation, issued upon the presentation of the petition, must, within sixty days thereafter, be served, as prescribed in section 2520," etc. The time for the service of a citation having elapsed, this proceeding must stand, if at all, upon the service already made. No new or supplemental citation can be of any avail, and it becomes necessary to determine whether service upon the executors of a citation directed to them as individuals without their official title, confers jurisdiction upon the court to proceed as against them, and to grant an amendment of the citation to conform it to the petition. If the court has this power, I think it ought to be exercised, as the objection raised is purely techni['] cal, and does not reach the merits of the proceeding. [] The citation was served within the time required to give the petitioner the benefit of section 2517, and upon the proper persons. The rules relating to the amendments in other courts of record (Code Civ. Pro., §§ 721– 730) are made applicable to the proceedings in surrogate's courts. Section 2538. Section 723 of the Code provides, "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 it deems just, amend any process, pleading 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," etc. No amendment can be allowed which changes the character of the proceeding. The petition which bears the nature of a pleading in an action, and the object of which is to appraise the court and parties of the character of the proceeding, the relief sought, and the grounds therefor, has set forth the executors in their official capacity, and is in no respect different from what would be required to authorize a citation addressed to the executors as such. [2] Any party, referring to the petition, would be informed as to the facts upon which revocation of |