5 Paige Ch. 252 | New York Court of Chancery | 1835
The neglect to make formal proof as to the execution of this agreement, and as to the correctness of the translation set out in the bill, was satisfactorily accounted for by the affidavit of the complainant’s counsel. And the case of Cox v. Allingham, (Jacob's Ch. Rep. 837,) xvas a sufficient authority to sustain the decision of the vice chancellor; if any authority was necessary to sustain a decision so manifestly just and proper. There was no pretence on the part of either of the defendants, that they had any reason to believe the agreement was not in fact executed by GS-oris, or that the translation thereof, as stated in the bill, was incorrect. The only effect therefore of denying this application would have been, to subject the parties to the delay and expense of a new suit; as it would, under the circumstances of this case, be a matter of course to permit the complainant’s bill to be dismissed, without prejudice to his right to proceed de nova. As the proof of the agreement was a matter of mere form, to which the attention of the complainant’s counsel was called for the first time at the hearing, the vice chancellor did right to give him an opportunity to apply to correct the formal defect; instead of subjecting the parties to the useless expense of a new suit.
The order appealed from is affirmed, with costs.
