Ford v. Smith
New York Supreme Court
Orr demurrer to replication. This was an action against defendant for a false return to a certiorari removing a judgment had before him in a justice’s court.
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Orr demurrer to replication. This was an action against defendant for a false return to a certiorari removing a judgment had before him in a justice’s court. The declaration alleged that the defendant falsely certified in his return, that on the return of the warrant in the suit below, one Hopping appeared as the attorney of the plaintiff, and proved a Power of attorney to him for that purpose, from the plaintiff; w^ereas’ *n truth, Hopping was permitted to appear as the attorney of the plaintiff and to declare against the defendant, notwithstanding the objection of the defendant on the bare…
1Opinion of the Court
By the Court,
Savage, C. J.
The question turns on the validity of the plea. Had the return stated the facts truly cronologically, I think we should have held the error cured. It was erroneous in the justice to permit the attorney to appear without competent proof of the authority. Such proof was made in the progress of the trial. The facts then appearing that the attorney had power to appear, the error was cured. This is in perfect analogy to other decisions of this court. Thus, where parol proof was received of encumbrances on real estate, the error was cured by due proof after-wards. (6…
2Cited by2 opinions
- Beardslee v. Dolge.New York Supreme Court · 1892
- Rector v. ClarkNew York Supreme Court · 1877