Majority
p. 268PRINCE & KINKEL IRON WORKS v. KENNY. (Supreme Court, Appellate Term. February 23, 1905.) Argued before SCOTT, GIEGERICH, and McCALL, JJ.
Headnote
Pleading and Evidence—Variance—Delay in Objection.Where the bill of particulars apprised defendant of the character of plaintiff’s claim, and the case was tried on the theory that the action was for money paid out for account of defendant, the objection of variance between the informal oral complaint and the proof, made only at the very end of the case, comes too late; there being no surprise, or claim thereof.'
[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1438-1441.]
Appeal from Municipal Court, Borough of Manhattan, Eighth District.
Action by the Prince & Kinkel Iron Works against John Kenny, Jr. From a judgment for plaintiff, defendant appeals. Affirmed.
Charles G. F. Wahle, for appellant.
John T. Booth, for respondent.
The justice was quite right in treating the complaint as amended to conform to the proof, although it was not necessary even to do so much. The bill of particulars sufficiently apprised defendant of the character of plaintiff’s claim, and the case was tried throughout upon the theory that the action was for money paid out for account of defendant. The defendant never suggested that there was a variance between the informal oral complaint and the proof until the very end of the case. He was too late, especially as he did not claim surprise, and obviously was not surprised.
On the merits the judgment was right, and must be affirmed, with costs.