Hagins v. De Hart

12 How. Pr. 322, 1856 N.Y. Misc. LEXIS 3

Opinion

Balcom, Justice,

overruled the objection, and gave the plain- • tiff leave to amend his complaint by inserting therein a charge that the defendant, at the time and place mentioned in the complaint, and in the same scuffle, “ wounded the plaintiff, and bit off both his ears.”

The defendant’s counsel claimed, that the defendant was not then prepared to defend the charge for wounding the plaintiff, and biting off his ears; but the justice said he was not satisfied such claim was well founded, and remarked that he thought if the defendant was then prepared to defend the charge of<f assaulting and beating the plaintiff,” he must be prepared to defend his entire conduct during the transaction or scuffle between the parties, including that of “ wounding the plaintiff, and biting off his ears ”—if he had any defence to such charge; and he refused to impose any terms for allowing the plaintiff thus to amend his complaint.

The proof was given, which showed the defendant did the ■acts complained of under great provocation from the plaintiff, and the plaintiff had a verdict for only $51.