21 Wend. 153 | N.Y. Sup. Ct. | 1839
By the Court,
I do not collect from the account of the notice published by the defendants, that they took any pains to indicate the true limits of their interest, which undoubtedly lay between Utica and Canandaigua. The notice however left the public to infer that the defendants were interested farther ; even from Albany to Buffalo, The complaint therefore" of the mere formal mistake in stating the termini does not call for any favor. It is but form, for there is no doubt that the trunk was lost within the range of their actual interest. It is clear that the circuit judge might overlook such a variance, and that we might allow an amendment on terms even in a case where the defendants had no share in the mistake. Lion ex dem. Eden v. Burtis, 18 Johns. R. 510. Hull v. Turner, 1 Wendell, 72. But in a case such as this, where the defendants, in one construction of their notice, spoke of an interest more than commensurate with the termini in the declaration, I think they should hardly be received to allege the variance. They seem to have supplied the defect in the plaintiff’s proof by showing a case in which the plaintiff was perhaps entitled to treat them for all purposes, as carriers from Batavia to Utica, if not farther. At any rate, the plaintiff may, under the circumstances, amend without costs; and the new trial should be denied with the usual costs of the plaintiff to be taxed in the general bill. For the two other points made in the cause, there is clearly no foundation.
New trial denied.
