Matthews v. Reilly

At the close of the plaintiff’s case the defendant moved that the complaint be dismissed on the ground that the plaintiff had not made out a prima facie ease within her pleading. The motion was granted upon a refusal to permit the plaintiff to amend her complaint to conform to the proof, both over the objection and exception of the plaintiff. The plaintiff appeals from the judgment entered on the order of dismissal and from an order denying a motion for a new trial. The record shows that the plaintiff proved a cause of action without objection, under the pleading, being made to the evidence as presented. The defect, if any, of non-conformance of the pleading ivith the proof was technical and unsubstantial and should have been disregarded. We are permitted to disregard it here and we do so. (Civ. Prac. Act, § 105.) Indeed we think the proof actually satisfied the pleading and presented a prima facie case for the jury thereunder. Moreover, the defense was an afterthought and was without merit. We think the judgment and order should be reversed and a new trial granted. Van Kirk, P. J., Hinman, Davis, Whitmyer and Hasbrouek, JJ., concur. Judgment and order reversed on the law and new trial granted, with costs to the appellant to abide the event.