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Lyons v. Miller

63 N.Y. St. Rep. 179 Court N.Y. City Ct. Decision date 1894-10-23 English

Delivered by *180 Fitzsimons, J.

Contents

Majority

p. 179
Harris Lyons, Resp’t, v. Julius Miller, App’lt.
(New York City Court, General Term,
Filed October 23, 1894.)

Headnote

Pleadings—-Variance.
Evidence of a surrender and acceptance of the demised premises in August is not admissible under an averment of such surrender in September.
Appeal from a judgment in favor of plaintiff.
H Joseph, for pl’ff; A. H. Berriclc, for def’t.

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.