East Boston Timber Co. v. Persons

2 Hill & Den. 126

• Court: New York Supreme Court
• Decided: October 15, 1841
• Status: Published

Opinion

The Court.

Under the rule which formerly prevailed, there can be no doubt that this was a fatal variance—such as would have overturned a well' founded action, or a good defence. But a more liberal rule now prevails; and as the judge was satisfied that the variance was not calculated to mislead or surprise the plaintiffs, he was quite right in disregarding it. Although the statute only extends to mistakes in setting out process, pleadings and instruments in writing—(2 R. S. 406, § 79)—we have often applied the same rule in relation to contracts by paroi. The matter in controversy between the parties has been fully tried upon the merits, and we will not grant a new trial on account of this trifling variance. It may be cured by an amendment—if, indeed, any amendment is necessary. As to terms—we have allowed similar amendments without costs, and will do so in this case.

Ordered accordingly.