Majority
p. 46(89 Hun, 10.) SPRING v. BOWNE. (Supreme Court, General Term, Second Department. July 26, 1895.) Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
Headnote
Pleading and Proof—Variance—Harmless Error.Where a complaint, independent of a guaranty clause, states a good cause of action for injury to plaintiff’s boat, on the theory that one assuming control of a dock is liable to one coming to it, at his invitation, with due care, on business, for injury to his boat occasioned by the unsafe access, and the case is tried and submitted as a negligence case, the allegation of the complaint that defendant guarantied to save plaintiff harmless against injury if he should move his boat to a certain place at the dock will not prevent recovery, as a variance may be disregarded where there is no proof that the adverse party was misled to his prejudice, and the guaranty clause may be treated as surplusage.
Appeal from circuit court, Kings county.
Action by William Spring against Watron H. Bowne, surviving partner, for personal injuries. Judgment was entered on a verdict in favor of plaintiff, and defendant appeals. Affirmed.
Wilcox, Adams & Green, for appellant.
Stewart & Macklin, for respondent.
This is an appeal from a judgment entered on a verdict of a jury. The suit was brought to recover damages for an injury to a canal boat. There is no exception in the case, except to
p. 47
a denial of the motion to dismiss the complaint, made when plaintiff rested, and again when the evidence was closed. The action was one which, under the old practice, would have been called an action on the case. The plaintiff undertook to transport in his canal boat a cargo of coal, consigned to the defendant from Weehawken to Zeregas dock, in Westchester creek, and he claimed that, upon his arrival at the creek, the defendant assumed to tell him where to place his boat for the purpose of delivery, and that, by complying with the orders of defendant, his boat grounded, and was stranded and damaged. It was tried and submitted to the jury as a negligence suit. There was an allegation in the complaint that defendant promised and agreed, in case plaintiff complied with his request to move his boat to a place designated by the defendant for the purpose of unloading, to guaranty and save plaintiff harmless against injury. Upon this obligation the plaintiff offered no proof, and this fact wras made by the defendant his principal ground of objection in the case, insisting that it wras such a variance as to prevent the plaintiff’s recovery. This contention is not sound. There was a good cause of action stated in the complaint, leaving out the guaranty or indemnity clause, and it was competent for the court to treat it as surplusage. The rule is well settled that a variance may be disregarded, when no proof is furnished that the adverse party has been misled to his prejudice. Code, §§ 539-541. Hauck v. Craighead, 4 Hun, 581 ; Gossler v. Lissburger, 19 Wkly. Dig. 291 . The issue was whether the evidence of plaintiff, if believed by the jury, brought the case within the rule that the “owner or person having the control of such a structure [to wit, a dock] is liable in damages to one, using due care, coming to it at his invitation or inducements, express or implied, on any business to be transacted by him, for an injury occasioned by the unsafe condition of the structure or the access to it.” The evidence warranted the inference that the defendant assumed control of the dock and told plaintiff where to place his boat. The case was so fairly and clearly put to the jury by the charge of the judge, to which no exception was taken, that there could have been no misunderstanding by the jury. The motion for a new trial was rightly overruled. We think the evidence in the case fully sustains the verdict, and that no error was committed upon the trial.
Judgment affirmed, with costs. All concur.