Gasper v. Adams
New York Supreme Court
APPEAL fiom a judgment rendered upon the report of a referee. The action was upon a note made on the 30th of January, 1855, by the defendants James D. Adams and Jesse F. Adams, by which they jointly and severally promised to pay to the order of Asahel Gooding, $410.69, with interest, sixty days after date. This note was indorsed by Asahel Gooding, Phineas Kent and Lemuel Castle, the other defendants.
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APPEAL fiom a judgment rendered upon the report of a referee. The action was upon a note made on the 30th of January, 1855, by the defendants James D. Adams and Jesse F. Adams, by which they jointly and severally promised to pay to the order of Asahel Gooding, $410.69, with interest, sixty days after date. This note was indorsed by Asahel Gooding, Phineas Kent and Lemuel Castle, the other defendants. The plaintiff sued as indorsee; and the complaint alleged presentment and demand of payment, non-payment, and notice to the indorsers. The answer admitted the making, indorsement and delivery of…
1Opinion of the Court
By the Court, Clerke, J.
As the defendants have failed to prove the facts set forth in the answer, and have neglected to ask for leave to make their answer conform to the facts, it is unnecessary for us to consider whether' the conclusions of the referee, from the facts proved, were correct. Facts, undoubtedly, may be averred in a pleading according to their legal effect; but facts directly different from the facts averred, will, in all cases, be deemed a variance; although, if properly pleaded, they also would have constituted a good defense.
I think the referee was right in deciding that…
2Cited by6 opinions
- Wright v. . DelafieldNew York Court of Appeals · 1862
- American Mills Co. v. HoffmanCourt of Appeals for the Second Circuit · 1921
- Ayrault v. ChamberlainNew York Supreme Court · 1860
- Bonny v. City of New YorkAppellate Division of the Supreme Court of the State of New York · 1913
- Field v. SymsThe Superior Court of New York City · 1864
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