Knapp v. Fowler
New York Supreme Court
Appeal from so much of an order made at a Special Term, as allows the plaintiff to amend his complaint and directs a new trial. The action was brought to rescind a conveyance on the ground that it was procured by the defendant, by fraudulently representing that the maker of a bond and mortgage which constituted the consideration of the conveyance was solvent. The defendant denied the fraud and the issue was referred.
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Appeal from so much of an order made at a Special Term, as allows the plaintiff to amend his complaint and directs a new trial. The action was brought to rescind a conveyance on the ground that it was procured by the defendant, by fraudulently representing that the maker of a bond and mortgage which constituted the consideration of the conveyance was solvent. The defendant denied the fraud and the issue was referred. The referee found as matter of law that “ upon the defendant’s own evidence and admissions upon the trial and the other testimony in the cause, that the said plaintiff is…
1Opinion of the Court
Hardin, J.:
Section 1018 of the Code of Civil Procedure declares upon the trial of an issue of fact the referee exercises also the same as the court, to allow amendments to the summons or to the pleadings.
Section 723 confers upon the court in broad terms power to amend any pleadings, and to conform the pleadings “ to the facts ] roved,,” when the amendment does “ not change substantially the claim or defense.”
The learned referee seems to have allowed the amendment under some doubt as to his power, and to have supposed the cases arising *202under the old Code questioning and limiting the powers of…
2Cases cited2 opinions
- Stevens v. VerianeNew York Supreme Court · 1870
- Chittenango Cotton Co. v. StewartNew York Supreme Court · 1873