
    EMIL LASS and Another, Plaintiffs and Respondents, v. CHARLES F. WETMORE, Defendant and Appellant.
    
      [Decided March 5, 1870.]
    It is no variance between an allegation in a complaint that the whole of a claim, which had been left with an attorney for collection, had been collected, and proof that only a part of the claim had been collected.
    Where it is complained on appeal that the judgment was too much by only forty-five dollars, the court might apply the maxim de minimis non curat lex.
    
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment entered upon the report of a referee.
    Action was brought against the defendant, an attorney-at-law, to recover the amount of a debt due from one Lloyd to the plaintiffs, which they had employed the defendant to collect, and which it was alleged had been collected by him. The plaintiffs alleged that they agreed to allow and pay the defendant a fee of fifty dollars for collecting. The defendant denied that any agreement was made in regard to fee or compensation for collecting. He alleged that he brought suit against Lloyd, which, with the consent of the plaintiffs, he afterwards settled, receiving a note for $300, and $25 costs and $15 for sheriff’s fees. He admitted that he had reeemed on the note $245.
    The action was tried by a referee, who rendered judgment against the defendant for $245, and interest.
    From this judgment the defendant appealed.
    
      Mr. Charles F. Wetmore for appellant.
    The referee erred in finding as a matter of' fact that the defendant had not paid to plaintiffs in full.
    The referee erred in not finding that the defendant’s negotiable note for $300 was received by plaintiffs in full payment of plaintiffs’ claim against the defendant in this action.
    
      The referee erred in finding that said note need not he returned to defendant, or cancelled on the trial hereof, before this action on the original indebtedness could be maintained by plaintiffs.
    The referee erred in not finding that it was necessary for the plaintiff to account for said note, or to offer to surrender to defendant, or cancel on the trial of this action, said note, before a judgment could be rendered for plaintiffs, for the original claim for which said note was given.
    The referee erred in finding as a conclusion of la,w, that the plaintiffs are entitled to any judgment whatever against the defendant for the matter claimed in the complaint herein.
    The referee erred in finding that the plaintiffs were entitled to a judgment against the defendant for any sum over two hundred dollars, and interest from 17th October, 1867.
    
      Mr. Robert J. Mitchell for respondents.
    There is no proof that defendant’s note was given or taken in payment; it was for the defendant to prove that it was (Noel v. Murray, 13 N. Y., 167).
    Had it been taken in payment, it would not discharge the original indebtedness (Moss v. Shannon, 1 Hilt., 175; Geller v. Seixas, 4 Abb., 103; Central City Bank v. Dana, 32 Barb., 296; Hill v. Beebe, 13 N. Y., 3 Kern., 562).
    The defendant not having pleaded payment cannot claim it as ;a defense (McKyring v. Bull, 16 N. Y. R., 298).
    The referee did not err in finding that this note need not be .returned to defendant, or cancelled on the trial, before this action «could be maintained by plaintiffs.
    This note was returned to defendant.
    Had it not been returned the authorities are sufficient to show ithat it was not necessary to return it or cancel it.
    It would not have been necessary even had this been a negotiable note; and there is not the slightest evidence that it was inegotiable (Hill v. Beebe, 13 N. Y. R., 562; Noel v. Murray, 13 N. Y. R., 167).
   By the Court:

Monell, J.

There was no substantial variance between the cause of action stated in the complaint and the cause of action proved on the trial. The plaintiffs’ allegation was, that the tuhole claim against Lloyd, amounting to $384, had been collected by the defendant. The proof showed that he had collected only $245. That sum the plaintiffs could recover under their complaint and created no variance. It was therefore proper to overrule the motion to dismiss the complaint.

The finding of the referee, upon what I consider sufficient evidence, that the defendant had the $300 note discounted and received therefrom the sum of $245, which he has not paid to the plaintiffs, necessarily disposes of one and perhaps the only defense.

That finding negatives the allegation that the plaintiffs received the note in settlement and satisfaction of the claim against the defendant, and overcomes the objection that the note should be returned, either before or at the trial.

The only other objection is that the recovery should have been for $200 instead of $245. To that objection we might apply the maxim da minimis non curat lex. The referee has found all the facts, upon which any such objection could have been predicated, against the defendant. All question in regard to the defendant’s compensation is disposed of by the uncontradicted evidence of one of the plaintiffs, who testified that the defendant agreed that they should receive $300, and at the same time remarked that Lloyd had paid him and the sheriff.

That evidence justified the referee’s disallowing the defendant any compensation, and in holding him liable to the plaintiffs for the whole amount he received upon the $300 note.

The objection to evidence was properly overruled.

I can discover no error in the proceedings on the trial or in the judgment, and it should therefore be affirmed.  