Fraiman v. Robbins

This is an action of contract based upon the contention of the plaintiff that he was entitled to a certain commission upon the sale of property made by the defendant which sale the plaintiff contends he was instrumental in bringing about.

The plaintiff’s declaration and the proof showed a variance, but that issue is not *205before us since it was not raised in the pleadings, and furthermore, was waived at the hearing before the Appellate Division by .counsel for the defendant. At any rate, the question of variance could not be raised for the first time at the argument before this Court. Gifford v.…