Sherman v. Hedden

U.S. Circuit Court for the District of Southern New York

Sherman v. Hedden

32 F. 756, 1887 U.S. App. LEXIS 2837

CourtU.S. Circuit Court for the District of Southern New York

DecidedNovember 7, 1887

StatusPublished

This text of 32 F. 756 (Sherman v. Hedden) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sherman v. Hedden, 32 F. 756, 1887 U.S. App. LEXIS 2837 (circtsdny 1887).

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Opinion

Lacombe, J.

In this case defendant moves for a judgment of non pros, on the ground that the bill of particulars heretofore served in this action, in compliance with section 8012, Rev. St., is insufficient and defective, in that it does not contain the name of the importer or importers, the place from which the merchandise was imported, the date of the invoice, and the date of the payment of the duties claimed to have been exacted in excess. In opposition to the motion, plaintiff’s attorney presents an affidavit of his clerk stating that, “through some inadvertence or oversight, he omitted'to insert” in the bill of particulars the details above set forth, and upon the argument plaintiff applied for leave to amend the bill mmc pro tunc. The papers in this case present no more excuse for plaintiff’s failure to comply with the express requirement of the statute than was presented in Dieckerhoff v. Robertson, ante, 73, and should be denied.

Upon the argument, reference was made to the subsequent granting of an order allowing amendment of the bill of particulars in the case last cited. Such order, however, is not authority controlling in future cases, because, at the time it was granted, the representative of the district attorney expressly stated in open court that, the question of power to grant leave to amend being decided against him, he had nothing further to say in opposition to the application. It should be further noted, with regard to Dieckerhoff v. Robertson, that the application in that case was simply for leave to alter the amounts claimed as excess of duty, and that it was stated, and not disputed, upon the first argument of the motion, that the figures were given erroneously in the original bill because the plaintiff had relied upon a statement furnished from or obtained at the custom-house as to the exact amount of excess, which official statement was itsfelf erroneous.

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Lacombe, J.

In this case defendant moves for a judgment of non pros, on the ground that the bill of particulars heretofore served in this action, in compliance with section 8012, Rev. St., is insufficient and defective, in that it does not contain the name of the importer or importers, the place from which the merchandise was imported, the date of the invoice, and the date of the payment of the duties claimed to have been exacted in excess. In opposition to the motion, plaintiff’s attorney presents an affidavit of his clerk stating that, “through some inadvertence or oversight, he omitted'to insert” in the bill of particulars the details above set forth, and upon the argument plaintiff applied for leave to amend the bill mmc pro tunc. The papers in this case present no more excuse for plaintiff’s failure to comply with the express requirement of the statute than was presented in Dieckerhoff v. Robertson, ante, 73, and should be denied.

Upon the argument, reference was made to the subsequent granting of an order allowing amendment of the bill of particulars in the case last cited. Such order, however, is not authority controlling in future cases, because, at the time it was granted, the representative of the district attorney expressly stated in open court that, the question of power to grant leave to amend being decided against him, he had nothing further to say in opposition to the application. It should be further noted, with regard to Dieckerhoff v. Robertson, that the application in that case was simply for leave to alter the amounts claimed as excess of duty, and that it was stated, and not disputed, upon the first argument of the motion, that the figures were given erroneously in the original bill because the plaintiff had relied upon a statement furnished from or obtained at the custom-house as to the exact amount of excess, which official statement was itsfelf erroneous.

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Bluebook (online)

32 F. 756, 1887 U.S. App. LEXIS 2837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherman-v-hedden-circtsdny-1887.