 Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.  Laws of the State of New York - Page 157by New York (State) - 1920Full view - About this book
 | District of Columbia - Law - 1857 - 788 pages
...immediate amendment without costs. SEC. 48. When, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in...particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof. SEC. 49.... | |
 | Austin Abbott - Civil procedure - 1858 - 610 pages
...disregarded, where the party setting up the variance does not show that he has been actually misled, is where the allegation to which the proof is directed is unproved,...particulars only, but in its entire scope and meaning. And where, in an action on an insurance policy, the answer alleged that after the insuring, and before... | |
 | Nathan Howard (Jr.) - Civil procedure - 1860 - 616 pages
...pleadings. Besides, those sections are very materially qualified by § 171, which provide* that where the allegation to which the proof is directed, is...particular or particulars only, but in its entire seope and meaning, it shall not be deemed a case of variance, but a failure of proof. Held, that in... | |
 | George Caines - Law reports, digests, etc - 1854 - 764 pages
...the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate...amendment, without costs. Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular... | |
 | Joseph S. Bosworth, New York (State). Superior Court (New York) - Law reports, digests, etc - 1861 - 740 pages
...generality of the sections, section 171 provides that where the allegation of the cause of action, to which the proof is directed, is unproved, not in...particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof. In applying... | |
 | North Dakota - Session laws - 1862 - 640 pages
...without costs. whcn«iicga- SECT. 130. When, however, the allegation of the claim or unproved. defence, to which the proof is directed, is unproved, not in some particular, or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections,... | |
 | New York (State) - Law - 1863 - 1026 pages
...330; 9 B., 371; 3 Bos., 456. 3 171. "Where however, the allegation of the cause of action or defense to which the proof is directed is unproved, not in...particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof. 16 NY,... | |
 | Thomas Berry Cusack Smith - Law reform - 1863 - 140 pages
...amendment, without costs." Section 668. — " Where, however, the allegation of the claim or defence to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, within the last two sections,... | |
 | New York (State). Court of Appeals, George Franklin Comstock, Henry Rogers Selden, Francis Kernan, Erasmus Peshine Smith, Joel Tiffany, Edward Jordan Dimock, Samuel Hand, Hiram Edward Sickels, Louis J. Rezzemini, Edmund Hamilton Smith, Edwin Augustus Bedell, Alvah S. Newcomb, James Newton Fiero - Law reports, digests, etc - 1864 - 674 pages
...misled, is found in section one hundred and seventy-one of the Code. Where the allegation of the defence to which the proof is directed is unproved, not in...particulars only, but in its entire scope and meaning, it shall be deemed a failure of proof and not an amendable variance. It cannot justly be said that here... | |
 | John Townshend - Civil procedure - 1864 - 320 pages
...Existing suits— Failure of Proof. Where, however, the allegation of the cause of action or defense to which the proof is directed is unproved, not in...particular or particulars only, but in its entire scope and mclming, it shall not be deemed a case of variance, within the last two sections, but a failure of... | |
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