Ford v. Smith

1 Wend. 48

• Court: New York Supreme Court
• Decided: May 15, 1828
• Status: Published

Opinion

By the Court,

Savage, C. J.

The question turns on the validity of the plea. Had the return stated the facts truly cronologically, I think we should have held the error cured. It was erroneous in the justice to permit the attorney to appear without competent proof of the authority. Such proof was made in the progress of the trial. The facts then appearing that the attorney had power to appear, the error was cured. This is in perfect analogy to other decisions of this court. Thus, where parol proof was received of encumbrances on real estate, the error was cured by due proof after-wards. (6 Cowen, 455.) So where the judge improperly refused to nonsuit the plaintiff for defect of proof, the error was cured by the proper proof being subsequently given. (6 Cowen, 490.) In Jackson v. Tuttle, (7 Cowen, 364,) it was held that in settling a bill of exceptions, the judge should insert testimony subsequent to the exception which operated as a waiver of the exception. I am of opinion that the defendant is entitled to judgment on the demurrers.