Cooper v. Bissell

15 Johns. 318

• Court: New York Supreme Court
• Decided: August 15, 1818
• Status: Published

Opinion

Per Curiam.

There are several insuperable objections to the motion.

When one count in a declaration is good, and the others bad, if the judge will certify that the evidence applied solely to that count, or that all the evidence given would properly apply to that count as well as the others, the verdict may he amended by applying it to the good count; and if the evidence did not particularly apply to the bad count, the verdict may also be amended. (1 Caines' Rep. 381. 1 Johns. Rep. 505.)

Admitting that one of the counts here is bad, on account of the misjoinder, the amendment can only be made in the court where the trial took place, and by reference to the judge’s notes.

It is believed there is no instance of an amendment in a court of errors, by inquiring into facts dehors the record. There is nothing in this court to amend by. A court of errors will either overlook clerical mistakes or they will amend them in furtherance of justice, where there is. any thing to amend by; it would not, in this case, be discreet in the court to make the amendment, if they had the power; for this motion has been submitted to the court below, where the trial took place, and that court has refused to make the amendment.

In the present case, a judgment has been given upon the verdict, and, consequently, it is completed; if any error has intervened, it is an error of the court in point of law ; and in such case, it is very questionable, indeed, whether this court can amend; the better opinion is, that it cannot. (Ray v. Lister, 1 Andrews, 384, 335.)

Motion denied.