Duncan v. Ray
New York Supreme Court
Error from the New-York common pleas. Ray sued Duncan to recover the price of a mare sold to him. The sale was proved to have taken place in October, 1825. The counsel for the defendant objected to the evidence, and prayed the court to exclude it from the consideration of the jury, on the ground that the plaintiff had furnished a bill of particulars, in which he had stated that he sought to recover the price of a mare sold by himself and partner to the defendant on or about…
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Error from the New-York common pleas. Ray sued Duncan to recover the price of a mare sold to him. The sale was proved to have taken place in October, 1825. The counsel for the defendant objected to the evidence, and prayed the court to exclude it from the consideration of the jury, on the ground that the plaintiff had furnished a bill of particulars, in which he had stated that he sought to recover the price of a mare sold by himself and partner to the defendant on or about October 13th, 1824. The defendant insisted upon the variance. The court refused to exclude the testimony from the…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
The objection of variance between the bill of particulars and the evidence of sale was properly disregarded, as is manifest from the following cases : 2 Taunt. 224; 1 Campb. 69, n.; 3 Maule & Selw. 380; 3' Bing. 3 ; 3 Wendell, 344; 4 id. 360.
Judgment affirmed.
2Cases cited1 opinion
- McNair v. GilbertNew York Supreme Court · 1829
3Cited by2 opinions
- Hoag v. WestonNew York Supreme Court · 1886
- Jackson v. ReichNew York Court of Common Pleas · 1893