Ely v. Van Beuren

3 Cai. Cas. 218

• Court: New York Supreme Court
• Decided: August 15, 1805
• Status: Published

Opinion

Per curiam.

We must, after trial, intend, that the trad-was shewn by proof, to be within the loth section, and tras not for strong liquor. As to the suit being for only a Pari ihe penalty, it is clear that the plaintiff was entitled to wJjat he did demand, the 12 dols. 50 cts. ; he might have waived the treble, damages, as. he had a right to do,'and the defendant below cannot complain that the plaintiff has re* covered less than he might have sued for. The parties ap-peare¿ ay the tria}, and no-objection Vas taken to the form 1 . ,. ... of the declaration; eyery informality 01 .it is, therefore, cui-ed ; and we must now intend the substance of it vas proy’ ed. The inoculation, therefore, was idle and null. It was . • , i • i i*. but mere aggravation, ana, as only a single penalty was recovered, it is evident no damages were given on that account. Affirm the judgment.