Hun v. Bowne — 1 Cai. 23

Majority

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Hun and others against Bowne.

Headnote

If a case made do not set forth the merits of a cause as they appeared on the trial, and the amendments proposed do not reach the hands of the counsel employed within a time agreed on, and within which they might have arrived but for an accident, the court will grant a further day to amend, and perfect the case.

Golden, for the plaintiffs, moved for leave to amend the-case made by the defendant.

From the affidavit of the attorney for the plaintiffs, it appeared, that the defendant’s attorney had agreed to give the plaintiffs’ attorney till the 21st January last, to settle his amendments before a judge at Albany, the cause having been tried in Hew York; that by some accident the amendments proposed by the plaintiffs to the case made on the part of the defendant, had not come to the hands of the counsel who was employed to attend to the business there, until the 22d January; and further, that the case made by the defendant did not set forth the merits of the cause as they appeared on the trial.

Hoffman, amicus.

In Duff v. Van Zandt, on a suggestion that the case made did not contain a true statement of facts, the court granted a new trial after argument and decision.

Boyd, contra.

The application stated some circumstances of strict and unaccommodating conduct in the plaintiff/ attorney, which had occurred previous to the agreement

p. 40

mentioned in the affidavit read by Colden, and some decía* rations of the plaintiffs’ attorney, that he would hold the defendant to strict practice.

We cannot travel back farther than the agreement stated. It appears that the defendant had given the plaintiff a time, which from accident he could not keep ; the amendments were sent with due speed, and so that they might have arrived at Albany in season, if nothing had happened to prevent it. We cannot let the plaintiff suffer by circumstances which he could not control. The verdict is in the hands of the plaintiff, and the defendant cannot be injured by a short delay.^[1]

Motion granted.^[2] .

(a) (a) If the papers from whence the case is to be made be in the plaintiff’s hands, the court will order them to be furnished, and stay proceedings in the mean time. Jackson v. Platt, 2 Johns. Cas. 71 . If an important fact has been omitted, leave will be given to add it. Jackson v. Barker, August, 1803, Caines’ Prac. 523. Foot v. Colvin, 2 J. R, 481; Jackson, v. Brownel, 3 J. R. 140; Codwin v. Harker, 1 Cai. R. 74 .

[1] [1] An order for time to make a case cannot be enlarged after it has expired; relief can be had by motion only. Hawkins v. Dutchess & 0. S.Co., 1 Cow. 467 .