Majority
p. 517-1Hoffnagle against Leavitt. ALBANY, Oct. 1827.
Headnote
Declaration iwtes,°Ymisduscribing them, ojyiatiqaq. afrpr verdict, and a on which.6 variance was on^objection!3But, it appearing that che defendant’s variance01* um der advice of caused1» mat¿ preparation for defence on the «on * was6 ™°- companied with the condition that the consent8t°Ula new trial. Other wise, that the case should gument t0with ■the variance upon 1 ’
In trover for two promissory notes, the declaration varied from the notes a few cents in setting them out; but the" iu3ge at the circuit directed a verdict for the plaintiff not- ** x withstanding the variance; and a case was made on which moye for a new trial, on this ground among others.
A motion was now made on the part of the plaintiff, to amend the declaration, so as to make it conform to the true amount of the notes,
. In opposition to this motion, the defendant made an am-davit, that, in consequence of being advised by counsel that the plaintiff must be nonsuited, he neglected fully to prepare for his trial, stating one particular in which he was not prepared; the omission to procure a witness who would have proved a fact, on the want of which the judge laid great stress in his charge, (showing the particulars.)
*S. A. Foot, for the motion.
H. Bleecker, contra,
cited 6 Cowen, 867; 18 John. 511 , 512.
The amendment sought, is within the principle of several cases decided by this court; and it should be granted. But that must be without prejudice to the defendant. He and his counsel were, in fact, misled, so as not fully to prepare the defense; and this by the omission of the plaintiff. We, therefore, direct the amendment; but it must be on the condition that the plaintiff consent to a new trial, within 80 days. If he withholds such consent, the case must proceed to argument, with the variance upon it.
Buie accordingly.