Wolcott v. Meech
New York Supreme Court
APPEAL by the defendant from a judgment entered at a special term, upon the report of a referee. The action was brought by the plaintiff, John Wolcott, as assignee of “Jones Wolcott,” to recover for work and labor performed by the latter for the defendant, in running a canal boat for him, during the season of 1848. The bill of particulars furnished by the plaintiff was for the “ labor and services of E. Jones Wolcott in running canal boat for defendant for 7 months and ' per…
Read the full summary
APPEAL by the defendant from a judgment entered at a special term, upon the report of a referee. The action was brought by the plaintiff, John Wolcott, as assignee of “Jones Wolcott,” to recover for work and labor performed by the latter for the defendant, in running a canal boat for him, during the season of 1848. The bill of particulars furnished by the plaintiff was for the “ labor and services of E. Jones Wolcott in running canal boat for defendant for 7 months and ' per month.” The referee reported in favor of the amount claimed.
1Opinion of the Court
By the Court, E. Darwin Smith, J.
In the complaSt it is claimed that the work and labor for which this action was brought was performed by Jones Wolcott. The testimony in the case shows that his real name was Edwin Jones Wolcott,
*322[Monroe General Term, September 1, 1856.
It was objected when the witness was called, and on the motion for a nonsuit, that this was a fatal variance, and that the contract set out in the complaint was not sustained by the proof. The referee disregarded the variance, and I think very properly. Among the best, if not the best provision in the code, is' section 169, which…
2Cited by2 opinions
- Began v. O'ReillyCalifornia Supreme Court · 1867
- Quackenbush v. SawyerCalifornia Supreme Court · 1880