— This action is not founded upon contract, and hence the sum for which the complaint demands judgment is deemed to be the amount of the matter in controversy within the meaning of section 191 of the Code. Here the complaint demands judgment for $500. It matters not that proof given upon the trial shows that the plaintiffs damages were less. If he can succeed upon his appeal upon a new trial it will be open to him to show that this property was worth $500 or more, if he can.

The motion must be denied, with ten dollars costs.