59 Barb. 375 | N.Y. Sup. Ct. | 1871
This is an appeal from an order of the county court of Cattaraugus county, granting a new trial on a case and exceptions,11 on motion of the plaintiff. The action was commenced in a justice’s court, where the plaintiff" had a judgment. The defendants appealed to the county court, and on the trial in that court, at the close of the plaintiff’s testimony, the jury were directed to find a verdict for the defendants. Afterwards, on a case and exceptions, the same court granted a new trial. We see no reason to interfere with the order grant
Ti4 case comes fully within the reason of the common law1 rule, and the rule ought to be made applicable to such caffes. There is the same necessity for the wife to act as a feme sole in obtaining credit, and acquiring property, for h/er personal support and protection, in such' a case as this, f|s there was at common law where the husband had abjured the realm.
/ The plaintiff offered to prove the services, and that she (had an assignment of the claim therefor from her son who performed the same. It is to be assumed, for the purposes of this appeal, that she could.have proved, had she been permitted, the services and the assignment. This claim was, therefore, her separate estate. And, under
Greater latitude of construction is sajways allowable in regard to pleadings in actions commenced in justices' courts, than in actions commenced in courts of record. There can probably be no question but that'vthis service of the son was the labor and service intended, to be set out in the complaint, so that the real cause of action would not be changed by the amendment. The difficulty? at best could only be technical. The variance would mot be deemed material, and would be wholly disregarded, unless it had actually misled the defendants to their prejudicio, in making their defense upon the merits. (Code, §§ 169, 170-)
We are of the opinion, therefore, that thé order grafting a new trial should be affirmed. V
Mullin, P. J,, and Johnson and Talcott, Justice.]