Hun and others v. Bowne

Hun and others v. Bowne. CJOLDEN for the plaintiffs, moved for leave to amend the case made by the defendant. From the affidavit of the attorney for the plaintiffs, it appeared, that the defendant’s attorney had agreed to give the plaintiff’s attorney till the 21st January last, to settle his amendments before a judge at Albany, the cause having been tried in New-York: that by some accident the amendments proposed by the plaintiffs to the case made on the part of the defendant, did not come to the hands of the counsel who was employed to attend to the business there, until the 22d January; and further, that the case made bv the defendant, did not set forth the merits of the cause, as they appeared on the trial. Hoffman, amicus. In Duff v. Van Zandt, on a suggestion, that the case made, did not contain a true statement of facts, the court granted a new trial after argument and decision. Boyd, contra, stated some circumstances of strict and unaccommodating conduct in the plaintiff’s attorney, which-had occurred previous to the agreement mentioned in the affidavit,' read by Colden, and some declarations of the plaintiff’s attorney, that he would hold the defendant to strict practice. [MAJORITY — Per Curiam.] Per Curiam. We cannot travel back farther than the agreement stated. It appears, that the defendant had given the plaintiff a time, which, from accident, he could not keep : the amendments were sent with due speed, and so, that they might have arrived at Albany in season, if nothing had happened to prevent it. We cannot let the plaintiff suffer by circumstances, which he .could not controul. The verdict is in the hands of the plaintiff, and the defendant cannot be injured by a short delay.