Miller v. Holmes

29 Jones & S. 245, 46 N.Y. St. Rep. 871, 61 N.Y. Sup. Ct. 245

Opinion

By the Court.—Dugro, J.

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 four hundred dollars.

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 twelve hundred dollars.

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

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, page 661.

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

Freedman, P. J., concurred.