4 Barb. 354 | N.Y. Sup. Ct. | 1848
It is not material to inquire whether the plaintiff should not have sought his remedy by counting upon the special contract between the parties, rather than upon the common assumpsit. The objection to the form of the action, not having been taken upon the trial, cannot be made available at this time. (Underhill v. Pomeroy, 2 Hill, 603 ; S. C. in error, 7 Id. 388.) The money advanced by the plaintiff to the defendants, and to recover which this action was brought, was advanced on the special contract of the
There is no evidence in thé case tending to show that the
The report must be set aside, and a new trial granted ; costs to abide the event.