Miller v. Holmes — 46 N.Y. St. Rep. 871

Majority

p. 871

Thomas F. Miller, App’lt, v. Henry Holmes, Resp’t.

(New York Superior Court, General Term,

Filed July 5, 1892.)

Headnote

Slander—Variance.

The complaint in an action for slander alleged that defendant had said that plaintiff had robbed him of $400. The evidence warranted an inference that he had said that plaintiff had robbed him of §1,200. Held, that the variance was not material, as it could not have misled defendant to his prejudice.

Appeal from judgment dismissing complaint.

Maurice Meyer and A. C. Palmer, for app’lt; Wager & Acker, for resp’t.

This is an appeal from a judgment dismissing a Complaint in an action for slander.

In the complaint there is, among other things, an allegation that the defendant had said of the plaintiff that he had robbed him of $400.

At the close of the plaintiff’s case the evidence did not warrant more than an inference that the defendant had said that the plaintiff had robbed him of $1,200.

Leave to amend his complaint so as to conform to the proof was denied plaintiff, and his complaint dismissed because of variance.

This was error, for a variance between an. allegation in a.

p. 872

pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice, etc. Code Civil Pro., § 539.

I think the law upon the subject briefly stated is, “ where the allegation and proof vary as to the words, it is enough if plaintiff proves that a distinct slanderous charge alleged, which is separable from any other unproven words alleged, was uttered in substantially the words alleged, it not appearing to have been materially qualified by other words not alleged.” Abbott’s Trial Evidence, 661.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Freedman, J., concurs.