By the Court —

This action was tried by the Court below without the intervention of a jury. After the appellants had rested their case, a motion was made by the respondent to dismiss the action for reasons specified. Thereupon the appellants moved to amend the complaint. Both motions were taken under advisement by the Court, and the trial proceeded with the introduction of testimony on the part of the defence, until the whole case was closed. After recapitulating the facts appearing from the testimony upon both sides, and laying down his conclusions of law, the judge says: “ I do not think the motion to amend the complaint should obtain. And I am clearly of the opinion, that ■the motion for an order of dismissal of this action should be sustained, and it is accordingly so ordered.” Assuming that this was equivalent to an order denying the motion to amend, as well as an order of dismissal, the first question upon which we have to pass is whether the denial of the motion is proper, or can be reviewed if it was improper. Both motions were made upon the close of the plaintiff’s evidence, and we must come to a decision with reference to that stage of the trial, and have nothing to do with the testimony subsequently introduced on the part of the defence, or with the findings of the Court thereon. The counsel for the appellants insists that the denial of the motion to amend (even if the motion was addressed to the discretion of the Court) was an abuse of discretion, and cites us to secs. 90, 91, pp. 543, 544, Pub. Stat. *197Both of these sections treat of variances, and are materially controlled by section 92, which reads as follows: “ When,' however, the allegation of the claim or defence to which the proof is directed is unproved, not in some particular only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.” 1 Van-Sant. Pl., 822, 2d Ed.; Egert vs. Wicker, 10 How. Pr. R., 197; Texier vs. Gouin, 5 Duer, 391.

In the case before us the complaint claims that the defendant had undertaken to collect a certain judgment, or interest in a judgment belonging to the complainants, on shares, and alleges, not that he had made collection, but that he had acknowledged receipt of payment, authorized his attorneys to satisfy the judgment, and that the same was thereupon satisfied of record. The evidence which was received, subject to objection for incompetency, &c., showed that the defendant had given to the attorneys a writing in which he requested them to satisfy the judgment, and reciting that the same had been fully paid. But no evidence was offered to show that this writing had ever been acted upon by the entry of satisfaction upon the record or otherwise. We take it that the most substantial allegation in the complaint was the statement that the judgment had been satisfied. There may be some reason to doubt whether the complaint was not fatally defective in omitting to set up special damage arising from the satisfaction, but waiving that, it is clear that the averment of the acknowledgment of payment was an averment of a mere matter of evidence, and not traversable or issuable, and that the other allegations were introductory. It is plain that without the averment of satisfaction the complaint failed to state facts sufficient to constitute a cause of action. When, then, the complainants failed to establish the fact of the satisfaction of the judgment, we apprehend that the case was not one of variance, but of failure of proof. If this view be correct, then the application to amend must have been made under sec. 94, p. 544, Pub. Stat. We have been unable to find any authority holding that where an amendment is asked for under this section, the denial of the motion will be error, review*198able by an appellate Court, unless it is clear that the denial was a gross and palpable abuse of discretion. See, on the contrary, Roth vs. Schloss, 8 Barb., 308; Brown vs. McCune, 5 Sand., 229; Hunt vs. H. R. F. I. Co., 1 Duer, 489; Robbins vs. Richardson, 2 Bos., 256-7; Kinam vs. Roberts, 6 Bos., 165; White vs. Stevenson, 4 Den., 194; Mil. & M. R. R. Co. vs. Finney, 10 Wis., 391; Gillett vs. Robbins, 12 Wis., 331; 5 Minn., 507; 8 Minn., 329; 9 Minn., 181. Roth vs. Schloss, 6 Barb. S. C. R., 308, seems to be a prominent case on this subject. The facts were that the defendant had recovered a judgment against Warner and Schneider, in Albany County; that execution was issued to the sheriff of Madison County, and levied by him upon the property of W. & S., who thereupon paid the same to the sheriff. No transcript had been filed, nor had the judgment been docketed in the county of Madison. The plaintiffs supposing this omission entitled W. & S. to recover back the money paid, took an assignment of their claim and brought this action. The defendant moved for a nonsuit on the facts as above stated, and the plaintiff offered to amend his complaint so as to allege that the money was paid “ in mistake and misconcej)tion of the facts, and supposing the execution to be a legal and valid process,” and to make proof accordingly. This offer was made first under sections 145 and 146 of the New York code, corresponding to sections 90 and 91 of our code, and secondly under section 149, corresponding to section 94 of our code, and denied in both cases. On appeal from an order denying a new trial, Gridley, Justice, says: “ The question of amendment did not arise under sections 145 and 146 of the code. There was no variance in the case. There was an omission of the entire allegation offered to be proved. It was, therefore, a case under the 149th section, and the motion should not have been granted unless it clearly appeared that to grant it would be in furtherance of justice. * * * But we do not think that the denial of a motion to amend, where the law reposes a discretion in the judge, is an appropriate ground of exception. To sustain an exception for a refusal of the judge at the trial to allow an amendment of the complaint, the party must show a clear case of *199unquestionable right, and that case seldom occurs except under the 145th section. See also Gatlin vs. Hanson, 1 Duer, 327; Texier vs. Gouin, 5 Duer, 391; Poirer vs. Fisher, 8 Bos., 263; Kelsey vs. Western, 2 Coms., 507; Van Sant. Pl., 2d Ed., 822-3, and cases cited supra.

There is nothing in the case before us to show any gross abuse of discretion in refusing the amendment. It was very easy for the plaintiffs to have ascertained whether the judgment had been satisfied of record or not, and if they saw fit to. commence their action and draw their complaint without first ascertaining a fact of that nature and importance, they certainly have not placed themselves in a position to insist upon the favor oí an amendment, after an answer has been put in denying the satisfaction of the judgment, followed by a reply on their own part, and after they have brought the defendant to trial, introduced their evidence and. rested their case. Failing to establish the satisfaction of the judgment, the motion to dismiss was properly granted. Van Sant. Pl., 822-3, and cases cited; Pub. Stat., 554, sec. 170, subdiv. 3. Although the question is not, perhaps, necessarily before us, we do not see how, upon the evidence as reported in the case, and the findings of fact by the Court, the plaintiffs could recover even if the amendment had been allowed, and upon the merits of the whole case.

The order denying the motion for a new trial is affirmed.