
    William H. Jackson et al., Resp’ts, v. Lorenz Reich, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 6, 1893)
    
    1. Variance — Bill of particulars.
    A variance between the proof and a bill of particulars which is not calculated to mislead the defendant should be disregarded.
    
      2. Same.
    The action was brought for a certain number of gas logs, tiles, etc., and for placing the same in defendant’s hotel, and the principal dispute was as to whether they had been included in previous bills. The bill of particulars specified work done at certain dates and in certain rooms of said hotel. Meld, that as the work was all done in one building, and defendant had it in his power to ascertain with exactness in which rooms logs had been placed and work done, it was not error, on defendant showing that the rooms specified had no gas logs or fire-places where they could be set, to allow a recovery for logs set in other rooms and at different dates than specified in the bill of particulars.
    Appeal by defendant from a judgment of this court, entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    
      Abram Kling, for app’lt; H. P. K. Peck (John Brooks Leavitt, of counsel), for resp’ts.
   Daly, Ch. J.

The complaint was for goods sold and delivered, including thirteen lava gas logs, iron bottoms for coal grate baskets, and tiles for facings, and for work, labor and services in attaching the gas logs, etc., an itemized account of which articles and" labor is set forth in detail in the bill of particulars annexed to the complaint, all which were alleged to be reasonably worth $322.15. The answer admitted the doing of certain work by plaintiff's for defendant upon the Hotel Cambridge, but denied knowledge or information sufficient to form a belief as to the furnishing of the materials and doing of the work claimed for, and alleged payment for all goods, merchandise and materials furnished and all work performed for him by plaintiffs. The jury found a verdict in plaintiffs’ favor for $100.

The bill of particulars annexed to the complaint specified work done at certain dates and in certain rooms of defendant’s hotel in the setting of lava gas logs, etc. The plaintiffs were permitted, under defendant’s objection, to prove the setting of gas logs in those rooms at dates other than those specified in the bill of particulars; and the defendant having given evidence to show that the rooms specified had no gas logs, nor fire-places or flues at which gas logs could be set, the plaintiffs were allowed to recover for gas logs actually set in other rooms in the hotel, and not paid for.

The defendant excepted to the allowance of evidence of work done upon dates not specified in the bill of particulars, and excepted to the refusal of the court to charge that the plaintiffs could only recover for the rooms actually charged for in the bill of particulars. These exceptions present the question whether the variance between the proof and the bill of particulars could be disregarded. If such variance was not calculated to mislead the defendant it might be disregarded. 2 Am. & Eng. Enc. of Law, 251.

It appears that the plaintiffs had done a large amount of work in defendant’s hotel, in the year 1887, in furnishing and setting fireplaces, fenders, gas logs, grates and tiles amounting to $7,510.60, for which they had been paid, and the items sued for were said to have been furnished in the years 1888 and 1889. The principal dispute was whether the thirteen gas logs sued for had not been included in the previous bills. The total number charged for, including those in suit, was about thirty-seven, and there were fifty-five drawing rooms or parlors in which there were mantelpieces, without reckoning the bedrooms with flues. The defendant could not be misled as to the quantity of gas logs, fenders, grates, tiling, etc., which had been set up in those rooms, and the room numbers given in the bill of particulars would not impede in the least any verification of the plaintiffs’ charges which he might desire to make.-

_ It appeared that there were in the hotel fifty-five suites consisting of more than one room, and each room was numbered separately, and those rooms connected, so that mistakes and confusion might easily arise in the minds of mechanics as to the number of the particular room in which certain work was done. This would account for any mistakes in the plaintiffs’ bill of particulars. But the defendant had it in his power to ascertain with exactness in which room logs had been placed and other work done, and to show by the bills he bad paid whether all the work had been paid for, and so the variance between the bill of particulars and the proof could do him no harm. For the same reason variance as to dates was immaterial. The work was done in one building, and all that was needed was for defendant to compare the items of work actually done with items charged in the various bills rendered. In fact, the demonstration of the correctness or incorrectness of plaintiffs’ demand was in his power without the aid of any bill of particulars.

Judicious liberality has been shown by the courts in disregarding variances between bills of particulars and proof. Thus, in Brown v. Williams, 4 Wend., 360-368, which was an action to recover back money paid, and the bill of particulars alleged that it had been paid by a certain person named, proof of payment by a different person was allowed. In Dubois v. D. & H. C. Co., 12 Wend., 334, the plaintiff was allowed to recover a greater price than that alleged in his bill of particulars. In Duncan v. Bay, 19 Wend., 530, a variance of a year as to the time of sale of ahorse, between the bill of particulars and the evidence given on the trial, was not regarded. In McNair v. Gilbert, 3 Wend., 344, the notes sued upon were described as bearing interest, while the notes proved did not bear interest, and the variance was held immaterial. In Bonney v. Seely, 2 Wend., 481, plaintiff claimed in the bill of particulars to recover for money paid, and his proof showed a payment in land instead of money. This was held admissible. In Newstadt v. Adams, 5 Duer, 43, the complaint alleged the delivery of a box to the defendants, as common carriers, at their office, 59 Broadway, while the proof showed a delivery at their office in Canal street. It was held a variance which the court, by the Code, was required to disregard. The variance between the bill of particulars and the proof in the case before us was not more serious than the variance disregarded in any of the authorities cited, and the defendant hasl nothing to complain of in the ruling of the court in that regard.

Error is claimed for instructions to the jury; but the appellant’s brief misapprehends the charge of the court. Thus, the court did not charge that if the jury believed the evidence of Hankinson (one of the plaintiffs), that he delivered forty or fifty gas logs, they must find that there was no contradiction thereto ; but charged that if they found that such evidence had been adduced upon the trial in this case, then they might find there was no contradiction thereof. Nor did the court charge that plaintiffs were entitled to a verdict if the jury believed Hankinson’s evidence; but, on the contrary, told the jury that Mr. Hankinson being a party to the suit, they had a right, after weighing" the testimony, to entirely disregard his testimony ; and in no part of the charge did the court intimate that his evidence was conclusive.

It is objected that Hankinson gave no such testimony as is embraced in the charge of the judge. This is not correct. Hankinson swore that it was forty to fifty-five logs altogether which he furnished, and which went into the rooms of the hotel; that this was his recollection from having seen them in the rooms. It is objected that there was contradiction of this tes timón v. The defendant made the following statement; I told him (Hankinson), I don’t believe there has been twenty logs put in the Cambridge where he claims forty-five, and I will prove it that there is not twenty-five logs in the Cambridge to-day and never was.” This was no contradiction of the testimony of Hankinson. The other evidence of the defendant related to the specific rooms charged for in the bill of particulars and not to the whole number of logs furnished.

None of'the exceptions were well taken and the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

Bischoff and Pryor, JJ, concur.  