Ford v. Gardner

1 Johns. Cas. 243

Opinion

Per Curiam.

The defect is thereby cured. The identity of the plaintiff below being ascertained, it was the duty of the defendant there to have availed himself of the variance before the -justice, instead of which he did not appear, and suffered judgment by default,

(a)

Judgment affirmed.

а) The statute of amendments, 2 R. S. 2d edit. 343, § 1, extending as It does to justice’s courts, id. 158, § 1, permits an amendment of the name of a plaintiff erroneously stated in the process ; Brace et al. v. Benson, 10 Wend. 213; but the amendment must be moved for and procured before proceeding to judgment. See Willard v. Missani, 1 Cowen, 37. 2 Cowen’s Treatise, 2d edit. 585, 586. Gordon v. Kennedy, 2 Binney, 291. State v. Collins, 2 Harrington, 216.