Divoll v. Henken — 48 N.Y. 672

Majority

p. 672

Willard Divoll, Respondent, v. Henry Henken, Appellant.

(Argued September 28, 1871;

decided January term, 1872.)

Headnote

The complaint in this action alleged an agreement on the part of defendant to pay plaintiff a commission of two and a half per cent upon a purchase price, for procuring a purchaser for defendant’s farm, which plaintiff did. Hpon the trial, the evidence, received without objection, showed an agreement to pay the commission upon the price of the property sold. This included a large amount of personal property as well as the farm. There was no suggestion upon the trial of variance between the evidence and the complaint. Plaintiff recovered the per centage upon the whole sale. Held, the objection could not be raised upon appeal, and if raised upon the trial it would have been the duty of the referee to have amended the complaint.

p. 673

Scrnwel Hand for the appellant.

Ira H. Tuthill for the Respondent.

Leonard and Earl, CO., read for affirmance.

All concur, Lott, Oh. 0., not sitting. Judgment affirmed, with costs.