Gasper v. Adams

28 Barb. 441, 1858 N.Y. App. Div. LEXIS 150

• Court: New York Supreme Court
• Decided: November 4, 1858
• Status: Published

Opinion

By the Court, Clerke, J.

As the defendants have failed to prove the facts set forth in the answer, and have neglected to ask for leave to make their answer conform to the facts, it is unnecessary for us to consider whether' the conclusions of the referee, from the facts proved, were correct. Facts, undoubtedly, may be averred in a pleading according to their legal effect; but facts directly different from the facts averred, will, in all cases, be deemed a variance; although, if properly pleaded, they also would have constituted a good defense.

I think the referee was right in deciding that there was a variance between the answer and the proof, and that the defendants failed to substantiate their defense.

judgment affirmed with costs.

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