Hull v. Turner — 1 Wend. 72

Majority

p. 72

Hull and others vs. Turner.

Headnote

a^deckratiori may be amend-conform to Proof>

Motion to amend declaration after verdict. The plaintiffs declared for a breach of warranty relative to the power of a bellows, used in a forge for the manufacture of iron, which the defendant had constructed for the plaintiffs, and which it was averred he had warranted to be of sufficient blast to blow three fires. At the trial, the proof was, that the-defendant had warranted the bellows to be of sufficient blast to blow three fires for the term of one year. The de-' fendant moved for a nonsuit on the ground of the.variance, which the circuit judge refused to grant, suggesting that the plaintiffs might apply to this court for amendment, and directed the trial to proceed. A verdict was rendered for the plaintiffs for $150. The defendant made a case prepara tory lo a motion to set aside the verdict, and the plaintiffs now applied to amend the declaration so as to make it conform to the proof, and for an order that the case be also made to conform to such amendment.

Lynde, for plaintiffs.

Jlverill, for defendant.

ordered the amendment of the declaration, on the plaintiffs’ consenting to a rule setting aside the' verdict, and paying the defendant’s costs of the circuit and of resisting this motion. This order was made to avoid the expense of a new suit,