Bibbins v. Noxon

4 Wend. 207 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland, J.

The variance is fatal, the defendant having put the judgment in issue by his plea of nul tiel record. Had the judgment been mere matter of inducement, the variance might have been disregarded ; but in this case it cannot be overlooked. It cannot be cured by a remititur; for that must be before judgment. (Strange, 1170. 4 T. R. 560.) The defendant is entitled to judgment.