Legal Opinion

Bailey v. Kay

New York Supreme Court

Decided May 6, 1867PublishedCited by 1 opinion

THIS is an action for assault and battery, which was tried at. the circuit held in Ulster county, in October, 1866. The plaintiff alleged in his complaint an assault and battery, committed on the 28th of November, 1865, and proceeded to the proof of an assault and battery, committed on the 20th of November, 1865. At the same circuit and just before the trial of this cause, as the defendant offered to prove, an action of assault and battery had. been tried in favor of the…

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THIS is an action for assault and battery, which was tried at. the circuit held in Ulster county, in October, 1866. The plaintiff alleged in his complaint an assault and battery, committed on the 28th of November, 1865, and proceeded to the proof of an assault and battery, committed on the 20th of November, 1865. At the same circuit and just before the trial of this cause, as the defendant offered to prove, an action of assault and battery had. been tried in favor of the said George Kay against the said Joseph Bailey, for an assault and battery committed on the 20th day of November, 1865, by…

1Opinion of the Court

By the Court,

Hogeboom, J.

I think a new trial should be granted in this case, for the refusal to allow the defendant to amend his answer. The new matter proposed to be incorporated in the answer, was' prima facie a complete defense to the action, and a valid excuse was presented for not pleading it before. This defense in substance was that the assault and battery complained of, was a part of the identical transaction for which the defendant had just recovered damages in an action for assault and battery against the plaintiff. These matters forming one transaction, the law requires them to be…

2Cases cited1 opinion

  1. Elliott v. BrownNew York Supreme Court · 1829

3Cited by1 opinion

  1. Wright v. BachellerSupreme Court of Kansas · 1876

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