Daley v. Atwood

7 Cow. 483

• Court: New York Supreme Court
• Decided: October 15, 1827
• Status: Published

Opinion

*Curia.

The facts shown for the defendant constitute no valid objection to the amendment. His attorneys were surprised, to be sure, in finding that the objection failed, which, till the trial,, they supposed to exist. The bond there turns out to be a valid support of the award; and no defense is pretended. Ho injury has arisen to the defendant from the mistake. We do not allow any advantage to the party, though he be misled by the mistake, if he, in fact, can lose nothing substantial by it. If the defendant had shown to us that he thought the oyer correct, and shaped his defense accordingly, (such defense being something more than the mere technical objection itself,) and that he had been deprived of this defense, or perhaps omitted to prepare himself with it, from his reliance on what he was thus led to think a fatal and final objection without it, the case would be very different. This is, however, no more than the common case. The defendant is deprived of a technical objection, which was against the justice of the case. He is not even entitled to the costs of the trial. Let the amendment be made on paying the costs of this motion.

Eule accordingly.