Graham v. Fitzpatrick

COXE, District Judge. I have examined the authorities cited by counsel and incline to the opinion that the judgment as presented is correct. The propositions now advanced by the defendants were not presented at the trial, and it would seem that some of the objections, especially those relating to the form of the complaint, are made too late after verdict rendered. Had the attention of the court been called to this point at the trial, it is not impossible that an amendment would have been allowed, conforming the pleadings to the proof. As the court now recalls the trial no question was raised regarding the damages, except as to the correctness of the computation, which was reserved. Irrespective, however, of .these considerations, it would seem that under section 1531 of the Code of New York, the proposed judgment is correct. Gaslight Co. of Syracuse v. Rome, W. & O. R. Co. (Sup.) 5 N. Y. Supp. 459; Chace v. Lamphere (Sup.) 22 N. Y. Supp. 404.