Lynch v. Cronk
New York County Courts
The complaint in this action alleged a wanton ánd malicious injury to thé real property of the plaintiff, caused, as stated in the complaint, by the defendant turning the water on in the upstairs apartments in such volumes as to flood such apartments.
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The complaint in this action alleged a wanton ánd malicious injury to thé real property of the plaintiff, caused, as stated in the complaint, by the defendant turning the water on in the upstairs apartments in such volumes as to flood such apartments. Plaintiff’s proof upon the trial seemed to establish with reasonable certainty that the water was not ‘ ‘ turned on, ’ ’ but that the injuries complained of were 'caused by permitting the waste water of the refrigerator to overflow. At the close of the plaintiff’s case motion was made to dismiss that part of the complaint dealing with damage…
1Opinion of the CourtHazard, J.
The Code provisions involved in this-case are found in sections 539, 540 and 541. In the first section it is provided that a variance between pleading and proof is not material unless it is actually misleading to the adverse party which fact must be proved to the satisfaction of the court. Section 540 provides that where the variance is not material the court may direct the verdict to be found according to the evidence, or may order an immediate amendment. Section 541 provides that where the allegation to *424which the proof is directed is unproved, “ not in some particular or particulars only,…
2Cases cited12 opinions
- Southwick v. First National Bank of MemphisNew York Court of Appeals · 1881
- Place v. . MinsterNew York Court of Appeals · 1875
- Gordon v. . Ellenville Kingston R.R. Co.New York Court of Appeals · 1909
- Woolsey v. Trustees of the Village of EllenvilleNew York Supreme Court · 1893
- La Rue v. . SmithNew York Court of Appeals · 1897
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