 Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof.  Select Cases on Code Pleading: With Notes - Pàgina 153per Austin Abbott - 1895 - 714 pàginesVisualització completa - Sobre aquest llibre
 | Nathan Howard (Jr.) - 1860 - 616 pàgines
...immediate amendment without costs. (§ 170.) But if an allegation is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not to be deemed a case of variance, but a failure of proof. (§ 171.) These provisions introduce a principle... | |
 | Joseph S. Bosworth, New York (State). Superior Court (New York) - 1865 - 776 pàgines
...necessary for the plaintiff either to withdraw or prove his allegation; and having failed to do either, it is not a case of variance, but a failure of proof, and cannot be cured by amendment. II. The amendment made at the trial cannot be sustained under § 167... | |
 | William Wait - 1874 - 910 pàgines
...immediate amendment, without costs. Code, § 170. But if an allegation is unproved not in some particular or particulars only, but in its entire scope and meaning, it is not be deemed a case of variance, but a failure of proof. Code, § 171. These provisions of the Code introduced... | |
 | New York (State), William Wait - 1877 - 662 pàgines
...proof is what to directed, is unproved, not in some particular or particulars only, but aefai?uree in its entire scope and meaning, it is not a case of variance, within ° the last two sections, but a failure of proof. Amendments of course. Code Pro., §171; Wait's... | |
 | Morris March Estee - 1878 - 648 pàgines
...Sandf. 734. 163. Where the allegations in a pleading to which the proof is directed remain unproved in its entire scope and meaning, it is not a case of variance to be disregarded, and an amendment will not be allowed unless it clearly appear to be in furtherance... | |
 | New York (State) - 1879 - 436 pàgines
...Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof. § 542. Within twenty days after a pleading,... | |
 | 1914 - 1246 pàgines
...the adverse party, and section 99 providing that when a material allegation is unproved, not in some particulars only, but in its entire scope and meaning, it is not a variance but a, failure of proof, though a pleading alleged that a fire was kindled on defendant's... | |
 | 1892 - 1170 pàgines
...a party out of court. But where the allegation of the complaint is unproved, not in some particular or particulars only, but in Its entire scope and meaning,...the plaintiff upon the pleading as it stands. This ia the statute rule, and was the rule of the courts before the statute. The authorities upon these... | |
 | New York (State), Charles David Rust - 1885 - 814 pàgines
...Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof. § 542. Within twenty days after a pleading,... | |
 | Morris March Estee - 1886 - 728 pàgines
...regarded.11 But where the allegations in a pleading to which the proof is directed remain unproved in its entire scope and meaning, it is not a case of variance to be disregarded, anil an amendment will not be allowed unless it clearly appear to be in furtherance... | |
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