
    FREUND v. S. H. GREENE & SONS CORPORATION.
    (Circuit Court, S. D. New York.
    May 16, 1905.)
    Pleading — Variance—Waiver op Objection.
    A verdict will not be set aside because of a variance, where the court’s attention was not called to it during the trial either by an objection to the evidence, a motion to strike' it out, or a request for instruction, but the plaintiff will be permitted to amend the complaint to conform to the facts proved.
    [Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1438-1441.]
    At Law. On motion to set aside verdict.
    Hiram R. Steele, for plaintiff.
    Lewis A. Freedman, for defendant.
   TOWNSEND, Circuit Judge.

Defendant’s motion is predicated chiefly on the ground that the evidence on which the jury rendered its verdict in favor of plaintiff was inadmissible under the pleadings, except to the extent of proving a claim of $400. The complaint claimed damages of $50,000 for breach of contract, and alleged, inter alia, an indebtedness to plaintiff of $10,800 for commissions due for work received from him by defendant. No objection was made at the trial to the reception of this evidence on the ground that it was not supported by the pleadings, no motion was made to strike it out by reason of insufficient pleading, no request was made to the court to charge the jury that it should be disregarded because of variance or departure, and no exception was made to the charge on any such ground. If the claim now made had been brought to the attention of the court in any way, it might have been corrected on the trial. In these circumstances, it is thought that the evidence was sufficient to support the verdict, and that an amendment should be allowed conforming the pleadings to the facts proved, in accordance with the rules established in the federal courts and in the courts of the state of New York.

An order may be entered for such amendment.  