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Lyons v. Miller

30 N.Y.S. 832 Court N.Y. City Ct. Decision date 1894-10-23 English

Delivered by FITZSIMOHS, J.

Contents

Majority

p. 832
(10 Misc. Rep. 43.)
LYONS v. MILLER.
(City Court of New York, General Term.
October 23, 1894.)

Headnote

-Pleading—Variance.
Where a surrender and acceptance of demised premises in September is alleged, evidence of a surrender and acceptance in August is not admissible.
Appeal from trial term.
Action by Harris Lyons against Julius Miller. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
Argued before FITZSIMONS and HEWBURGER, JJ.
H. Joseph, for plaintiff.
A. H. Berrick, for defendant.

The answer alleges that in the month of September, 1893, the defendant surrendered and the plaintiff accepted the demised premises. This allegation the defendant’s proof entirely failed to sustain. Testimony tending to show an ■acceptance and surrender in August was properly excluded. The proof must follow the allegation; otherwise it is inadmissible. The judgment must be affirmed, with costs.