Texier v. Gouin
The Superior Court of New York City
This was an action by the plaintiff, as endorsee, against the defendant Grouin, as maker, and the defendant Boeck as endorser, of a promissory note, for $1,800, dated 5th June, 1854,. and payable to the order of Boeck, four months after date. The complaint was in the usual form, and contained all the allegations necessary to charge the defendants.
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This was an action by the plaintiff, as endorsee, against the defendant Grouin, as maker, and the defendant Boeck as endorser, of a promissory note, for $1,800, dated 5th June, 1854,. and payable to the order of Boeck, four months after date. The complaint was in the usual form, and contained all the allegations necessary to charge the defendants. The answer admitted the making, endorsement, &c., of the note, but set up, as a defence, that it was without consideration, had been transferred to the plaintiff merely as a collateral security, and had been obtained by false representations. The…
1Opinion of the Court
By the Court. Oakley, Ch. J.
Upon reflection I concur with, my brethren, that, under the pleadings in this case, proof of the payment of the note ought not to have been received, and that I had no power, under § 169, or any other section, of the Code, either to amend the answer, so as to warrant the admission of the proof, or to treat the variance, which it created, as immaterial. It is true, that the language of § 169 is broad enough to embrace every possible discrepancy, between the proof and the pleadings, so as to make it the duty of the court, upon a trial, either to amend the pleading,…
2Cases cited2 opinions
- Mauri v. HeffernanNew York Supreme Court · 1816
- Bird v. CaritatNew York Supreme Court · 1807
3Cited by6 opinions
- Graser v. . StellwagenNew York Court of Appeals · 1862
- Ransom v. WetmoreNew York Supreme Court · 1862
- Cary v. Western Union Telephone Co.New York Supreme Court · 1888
- Clark v. MullenNebraska Supreme Court · 1884
- Patterson v. PattersonThe Superior Court of New York City · 1863
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