
    Malinda Hasbrouck and Frank Forman, Appellants, v. William V. Dutcher, Respondent.
    Appeal by the plaintiffs from a judgment of the Supreme Court, entered in the office of the clerk of the county of Montgomery upon the report of a referee on the 12th day of April, 1912.
   Lyon, J.:

We think that the referee erred in excluding the items of ten dollars and "fifty cents for casks and seventy-seven dollars and fifty cents for unpaid checks and protest fees. The item of fifty-two dollars and thirty-seven cents, amount of sales of April twenty-second, was properly excluded as not being due at the time of the commencement of the action. Upon the trial the plaintiffs proved the sale and delivery of the articles comprising the account, and that an itemized statement thereof, showing the balance to be one hundred and eighty-six dollars and forty-four cents, had been shown to the defendant, who stated that the account was correct, which statement was then offered and received in evidence, and at the close of the evidence the plaintiffs moved to amend the complaint to conform to the proof, to which defendant consented. The said statement of account was then again offered in evidence, received and marked as an exhibit, without objection that it had not been pleaded. The defendant offered no evidence whatever. The referee awarded judgment in favor of plaintiffs for forty-seven dollars and sixty-one cents, the amount of the plaintiffs’ claim, excluding the three items above referred to, and awarded costs to defendant. We think the referee erred in excluding the items of ten dollars and fifty cents and seventy-seven dollars and fifty cents, and that upon the undisputed facts he should have included such two items in his award, and should have awarded judgment to the plaintiffs against. the defendant for the amount of plaintiffs’ claim, less fifty-two dollars and thirty-seven cents, that is, for the sum of one hundred and thirty-four dollars and seven cents, with interest from June 19, 1911, with costs, and that the judgment appealed from should be so modified and as so modified affirmed, with costs of appeal to plaintiffs. ■ Judgment modified as per opinion, and as modified unanimously affirmed,, with costs.  