Slater Bros. Cloak & Suit Co v. Quaker Woolen Mills, Inc.

Majority

p. 883

Slater Bros. Cloak and Suit Company, Respondent, v. Quaker Woolen Mills, Inc., Appellant.

Headnote

Trial — verdict in excess of demand — when sustained by amendment of pleading.

Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office March 18, 1920, upon the verdict of a jury, also from two orders, entered April 16, 1920, one denying a motion for a new trial, and one granting a motion after verdict to amend complaint to conform to the proof.

The evidence sustains the amount of the verdict returned by the jury, which is slightly in ■ excess of the amount demanded in the complaint; but as the amount due is a mere matter of calculation, the complaint is deemed amended to conform to the facts as proved. The judgment and orders appealed from should, therefore, be affirmed, with costs. Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. Smith, J., dissents and votes for modification of the judgment by reducing it to the amount claimed in the complaint. Judgment and orders affirmed, with costs.