Robert v. Donnell

2 Daly 64

• Court: New York Court of Common Pleas
• Decided: March 15, 1866
• Status: Published

Opinion

Cardozo, J.

I think the judgment below should be affirmed, for the following reasons, viz.:

1. I think the complaint sufficiently, although perhaps not with technical accuracy, shows a cause of action against the defendants, and they do not aver in their answer that the undertaking was not delivered by them.

2. The only denial in the answer, the falsity of which it rested upon the plaintiff to establish, is that which puts the affirmance of the judgment in issue. A certified copy of the order of the general term, affirming the judgment, was read in evidence, and, even if the general objection taken to its competency would present any question for our consideration, it is removed by the production, on the argument before us, of a duly exemplified copy of the order of affirmance, which it is proper for us to receive and consider (see Jarvis v. Sewall, 40 Barb. 449; Dresser v. Brooks, 3 Barb. 431, and cases there cited).

These views show that the other rulings complained of were not material, and therefore need not be considered.

Daly, F. J. There was sufficient evidence in the case to warrant a finding, that the undertaking was filed in the Marine Court upon the appeal to the general term, and we can, upon this appeal, amend the pleading so as to conform it to the fact proved.

The judgment should be affirmed.

Brady, J., concurred.