Prince & Kinkel Iron Works v. Kenny

92 N.Y.S. 268

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 23, 1905
• Status: Published

Opinion

PER CURIAM.

The justice was quite right in treating the complaint as amended to conform to the proof, although it was not necessary even to do so much. The bill of particulars sufficiently apprised defendant of the character of plaintiff’s claim, and the case was tried throughout upon the theory that the action was for money paid out for account of defendant. The defendant never suggested that there was a variance between the informal oral complaint and the proof until the very end of the case. He was too late, especially as he did not claim surprise, and obviously was not surprised.

On the merits the judgment was right, and must be affirmed, with costs.