Pease v. Morgan

7 Johns. 468 | N.Y. Sup. Ct. | 1811

Per Curiam.

There was no averment in. the declaration that the defendants were partners, or acted under the firm of John 8? George Pease, but the declaration is, that the defendants made the note, “ their own proper hands and names being thereunto subscribed,” and the proof was, that only the defendant George signed the note. This was not sufficient to prove the contract as laid. There is no case or precedent to warrant such proof applied to such a declaration.

In The Manhattan Company v. Ledyard & Ledyard, (1 Caines’ Rep. 192.) there were the proper averments| and that case only decides that it was sufficient to state that the firm subscribed the note, without saying that one qf the firm did it in the name of the firm.

The exception to the testimony being properly taken, the judgment below must be reversed, unless the defendant in error chooses to avail himself of the terms on which this court is willing to relieve him, upon his prayer for leave to amend. On the payment of the costs of the court below, subsequent to the filing of the declaration, the defendant has leave to amend his declaration, by inserting the requisite averments, and the plaintiff in error has 20 days from the service of the amended declaration to pay the amount of the note, as recovered in the court below-, without costs, or to plead; and in the last case a venire de nova is awarded, returnable at the Oneida circuit. The authorities for this proceeding are Brown v. Clark, (3 Johns. Rep. 443.) and the cases there, referred to; Dumond v. Carpenter, (2 Johns. Rep. 184.) Vicar v. Hayden, (Cowp. 841.) and Rex v. Ponsonby, (1 Wi is. 303.) This is done without costs in error, because, if judgment be given for the plaintiff below, and that judgment be reversed, the plaintiff in error recovers' no costs, as the case is not within any of the provisions of the act giving costs. (Bally. Potts, 5 East, 49.) The allowance of the amendment in this case may be going further than the precedents; but not further than the reason and prineiple on which they are founded. " The superior court' where error is brought, may," says Ch. J. Lee, "make such amendments as the court below may, when the superior court has the same matter to amend by, as the in~ ferior has." Here we have the whole record, and such an amendment `in a declaration would be almost a matter of course in the same court.