Hoffnagle v. Leavitt
New York Supreme Court
In trover for two promissory notes, the declaration varied from the notes a few cents in setting them out; but the" iu3ge at the circuit directed a verdict for the plaintiff not- ** x withstanding the variance; and a case was made on which moye for a new trial, on this ground among others.
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In trover for two promissory notes, the declaration varied from the notes a few cents in setting them out; but the" iu3ge at the circuit directed a verdict for the plaintiff not- ** x withstanding the variance; and a case was made on which moye for a new trial, on this ground among others. A motion was now made on the part of the plaintiff, to amend the declaration, so as to make it conform to the true amount of the notes, . In opposition to this motion, the defendant made an am-davit, that, in consequence of being advised by counsel that the plaintiff must be nonsuited, he neglected fully to…
1Opinion of the Court
Curia.
The amendment sought, is within the principle of several cases decided by this court; and it should be granted. But that must be without prejudice to the defendant. He and his counsel were, in fact, misled, so as not fully to prepare the defense; and this by the omission of the plaintiff. We, therefore, direct the amendment; but it must be on the condition that the plaintiff consent to a new trial, within 80 days. If he withholds such consent, the case must proceed to argument, with the variance upon it.
Buie accordingly.
2Cited by2 opinions
- Bogart v. M'DonaldNew York Supreme Court · 1801
- Davis v. SmithNew York Supreme Court · 1857