Smith v. Goodrich

Decided February 15, 1810

New York Supreme Court · decided 1810-02-15

IN error, on certiorari. Goodrich brought his ac- ° tion against Smith, before a justice, on a warranty to . - recover damages for some salt, purchased of Smith, which was alleged to be adulterated and bad. At the - trial of the cause, Goodrich appeared in proper person, and Smith by his attorney, who was admitted to defend the cause j but the justice, in his return to the certiorari, did not state the reason for admitting the defendant to appear by attorney.

Decided 1810-02-15

Per Curiam.

¶1Several points were made by the plaintiff in error j but it is sufficient to notice one only*. The Qourt have decided, again and again, that if the parties below appear by attorney, though it be by consent, it is error. The statute (10 sess. c. 10. § 10.) is peremptory, and cannot be eluded or set aside, by any consent or collusion between the parties. But if the plaintiff in error only appear by attorney, he shall not be allowed to take advantage of his own act, to defeat the recovery below. This would be against a well settled principle of law, as well as a flagrant injustice. The judgment below must be reversed.

¶2Judgment reversed.(a)

¶3 The same point arose in several other causes before the court, on certiorari, during this term, in which the same decision was given.