Leslie v. Grover
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Norard Grover, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of September, 1908, reversing a judgment of the Municipal Court of the city of Buffalo in favor of the defendant, which dismissed the complaint, and directing á new trial in the Municipal Court.
1Opinion of the Court
Kruse, J.:
No question was raised upon the trial until after the evidence was closed that there was a variance between the proof and the cause of action alleged in the complaint. There was no misapprehension by the defendant as to the precise nature of the plaintiff’s claim, and the defendant gave evidence to meet it. I think that under such circumstances the trial court properly permitted the complaint to be amended to conform to the proof (Martin v. Home Bank, 160 N. Y. 190, 198; Cullen v. Battle Island Paper Co., 124 App. Div. 113; Baumann v. Tannenbaum, 125 id. 770), but erred in granting…
2Cases cited2 opinions
- Martin v. . Home BankNew York Court of Appeals · 1899
- Cullen v. Battle Island Paper Co.Appellate Division of the Supreme Court of the State of New York · 1908