Cumber v. Schoenfeld
New York Court of Common Pleas
Appeal from trial term. Action by Jeremiah Cumber against Louis H. Schoenfeld. Defendant appeals from a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial. Code Civil Proc. N. Y. § 723; provides: “The court may * * * amend any process, pleading, or other proceeding, * * * where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to the facts proved.”
1Opinion of the CourtPryor, J.
Appeal from a judgment for plaintiff on a verdict, and from an order denying a motion for a new trial. The complaint exhibits but a single cause of action, and that is strictly and exclusively for malicious prosecution. Plaintiff rested upon proof of a right of recovery for malicious prosecution only; but, having elicited, on cross-examination of defendant’s witnesses, that the arrest was without a warrant, although his complaint expressly alleged that the arrest was under a warrant, plaintiff moved, at the close of the case, to amend the complaint to conform to the proof. The motion was…
2Cases cited7 opinions
- Hamilton v. . Third Avenue Railroad Co.New York Court of Appeals · 1873
- Standard Oil Co. v. . Amazon Ins. Co.New York Court of Appeals · 1880
- Harris v. . TumbridgeNew York Court of Appeals · 1880
- Price v. . BrownNew York Court of Appeals · 1885
- Bockes v. . LansingNew York Court of Appeals · 1878
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3Cited by4 opinions
- Zboynski v. Brooklyn City RailroadNew York City Court · 1894
- Jacobs v. SireThe Superior Court of New York City · 1893
- Austin v. Staten Island Rapid-Transit Railway Co.New York Court of Common Pleas · 1891
- Crane v. SchlossNew York Court of Common Pleas · 1891