Miller v. Holmes

19 N.Y.S. 701

• Court: The Superior Court of the City of New York and Buffalo
• Decided: July 5, 1892
• Status: Published

Opinion

Dttgro, 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 $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. pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice, etc. Section 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.” Abb. Tr. Bv. p. 661. The judgment should be reversed, and a new trial ordered, with costs to abide the event.