Gasper v. Adams
New York Supreme Court
APPEAL by the plaintiff from an order allowing an amendment of the defendants’ answer, to conform it to the facts found by the referee, and ordering a new trial before the same referee. The action was upon a promissory note. The defense set up in the answer was usury. The usury was proved. There was a variance between the proof and the answer as to the parties to the usurious contract.
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APPEAL by the plaintiff from an order allowing an amendment of the defendants’ answer, to conform it to the facts found by the referee, and ordering a new trial before the same referee. The action was upon a promissory note. The defense set up in the answer was usury. The usury was proved. There was a variance between the proof and the answer as to the parties to the usurious contract. The referee was of opinion that, as referee, he could not disregard the variance, nor could he allow the answer to be amended. He found the facts specially, and reported, on the above grounds, in favor of the…
1Opinion of the Court
By the Court, Mitchell, P. J.
The defendant pleaded . usury, and the referee before whom the cause was tried was of opinion that there was such a variance between the usury alleged in the answer and that proved that he must disregard it. If he was wrong in this there was no need of any amendment, and the defendant’s mode of relief should have been an appeal from the judgment entered on the referee’s report. It must be assumed, on this motion, that the referee was right. The defendant moved to amend his answer, after the report was made by the referee, and judgment entered on the report. The…
2Cases cited1 opinion
- Wager v. StickleNew York Court of Chancery · 1831
3Cited by5 opinions
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