Babbett v. . Young
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the seventh judicial district, entered upon an order denying a motion for a new trial and directing judgment in favor of plaintiff upon a verdict.
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Appeal from judgment of the General Term of the Supreme Court in the seventh judicial district, entered upon an order denying a motion for a new trial and directing judgment in favor of plaintiff upon a verdict. (Reported below, 51 Barb., 466.) This action was brought to recover a balance alleged to be due on a contract between the parties for the manufacture and delivery by the plaintiff to defendant of certain machinery, and for the rise after the contract was made in the price of material used in making the machinery, as well as the ■ increased tax to which he was, by an act of congress,…
1Opinion of the Court
Gray, C.
The motion for a nonsuit was properly overruled. The allegation in the complaint was that the machines were delivered by the plaintiff and received by the defendant in pursuance of a contract. The evidence so nearly supported the allegation as to show that all the machines were delivered, and although not within the specified time, yet that they were received and accepted by the defendant. If the proofs did not in substance sustain the allegation, the variance was so slight as to forbid even a pretence that it had misled the defendant, and hence was properly disregarded. (Lounsbury v.…
2Cases cited2 opinions
- Lounsbury v. . PurdyNew York Court of Appeals · 1859
- Auburn City Bank v. LeonardNew York Supreme Court · 1863
3Cited by4 opinions
- Insurance Co. of North America v. Forcheimer & Co.Supreme Court of Alabama · 1888
- Bassett v. PerkinsNew York Supreme Court · 1909
- Phelps v. BorlandNew York Supreme Court · 1883
- Scherini v. Titanium Alloy Co.New York Court of Appeals · 1941