Ford v. Gardner

Decided January 15, 1800

New York Supreme Court · decided 1800-01-15

<p>In-an action before a justice, the plaintiff declared by a different name from the. one mentioned in the summons, but the identity of the person was ascertained ; the defendant did not appear, but suffered judgment by default; it was hey, that he should have appeared and taken the advantage of the variance before the justice,, but could not avail himself of it afterwards.</p>

Relies on Brace v. Benson

Decided 1800-01-15

Per Curiam.

¶1The defect is thereby cured. The identity of the plaintiff below being ascertained, it was the duty of the defendant there to have availed himself of the variance before the -justice, instead of which he did not appear, and suffered judgment by default, (a)

¶2Judgment affirmed.

¶3а) The statute of amendments, 2 R. S. 2d edit. 343, § 1, extending as It does to justice’s courts, id. 158, § 1, permits an amendment of the name of a plaintiff erroneously stated in the process ; Brace et al. v. Benson, 10 Wend. 213; but the amendment must be moved for and procured before proceeding to judgment. See Willard v. Missani, 1 Cowen, 37. 2 Cowen’s Treatise, 2d edit. 585, 586. Gordon v. Kennedy, 2 Binney, 291. State v. Collins, 2 Harrington, 216.