Majority
p. 774Bartholemew et al. v. Lyon.
Headnote
Treatment—suit by infant—JShidence—presumption of fact — memoranda — Nonsuit— error in refusing cured by subsequent evidence.The objection that an infant has. not the legal capacity to sue in ejectment must be taken .by demurrer. .Beaton v. Demis, 1 IT. Y. Sup. 91. But where the wife of the infant’s father sued as guardian, the father being dead, and no proof being introduced showing that he had married more than once, held, that the presumption was that she was the mother of the infant and the guardian in socage, and as such entitled to sue, and an amendment of the pleadings would be made .to meet the technical objection first raised on appeal that the suit was not properly brought. Sylvester v. Bolston, 31 Barb. 286 ; 1B. S. 718, § S; 17 Wend. 75 ; 30 Barb..633; 55 id. 428, 429.
Where a nonsuit on the ground of want of evidence was refused, held, that subsequent proof of the necessary facts would.obviate the error (if one) of refusal. 21 Barb. 241 ; 11 N. Y. 102 ,112; 2 Hill, 620 .
Memoranda of facts made by a witness about twenty-three years before the trial, the witness not being able to recollect the facts, but testifying that the memoranda were true; held, admissible to refresh the memory of the wit. ness. 22 N. Y. 462 ; 15 id. 485 ; 29 id. 346.
p. 775
Exceptions ordered to be first heard at general term after a verdict for plaintiffs.
Action of ejectment brought by Ellison Bartholemew and others, the widow and children of Daniel Bartholemew, deceased, against Harvey Lyon, to recover thirty acres of land in Ohemung county.
Smith & Hill, for plaintiffs.
R. King, for defendant.
The head-note states the points passed upon in the opinion, and it is not believed necessary to give the same at length.
Judgment for plaintiffs.
Cases cited
- Sylvester v. Ralston 31 Barb. 286 p. 774
- Holmes v. Seely 17 Wend. 75 p. 774
- Barrick v. Austin 21 Barb. 241 p. 774
- Schenectady & Saratoga Plank Road Co. v. Thatcher 11 N. Y. 102 at 112 p. 774
- Guy v. Mead 22 N. Y. 462 p. 774