New York & Erie Rail Road v. Cook

2 Sandf. 732

Opinion

By the Court.—Oakley, Ch. J.

We have no doubt that Mr. Ketchum was a competent witness, under the recent provisions of law on that subject.

At the trial, the defendant moved for a non-suit, without specifying any ground for it. He now states, as a ground for a non-suit, that some material allegations were not made in the declaration, and that others were not proved. As for example, that there was no proof of the organization of the company, and none that the defendant had received notice of the calls made on the stock, or that any notice was given as required by the charter. The others are of the same description.

It is a well established rule, that a party Cannot move for at new trial, or for leave to enter a non-suit, on a point not distinctly taken at the trial, if it be such a point as might have been obviated by proof, if it had been then raised. In this case, every ground now presented to us, is of that character. All might, as we cannot fail to see, have been obviated, either by amending the declaration or by evidence.

If the objections were in their nature such that they could not have been obviated if made at the trial, probably a different rule would be applied.

New trial denied.