
    (10 Misc. Rep. 48.)
    BURNS v. WALSH.
    (City Court of New York, General Term.
    October 23, 1894.)
    Pleading—Amendment to Conform to Proof.
    Where evidence not within the issues is admitted without objection, the pleadings may be amended on the trial so as to conform to proof.
    Appeal from trial term.
    Action by Edward Burns against Augustin Walsh. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
    Argued before EHRLICH, C. J., and FITZSIMOHS and NEW-BURG-ER, JJ.
    M. J. Scanlan, for appellant.
    H. M. Hitchings, for appellee.
   FITZSIMONS, J.

The plaintiff, an engineer, claimed that he was hired by the defendant to perform services as an engineer at a salary of $100, out of which he should pay $20 per month to an assistant. The defendant claimed that he should have hired, under his agreement, two assistants, for $40 per month, leaving him a balance of $60 for his services. This issue of fact was submitted to the jury, and they decided in favor of the plaintiff, which finding, we find, is amply sustained by the testimony. The plaintiff’s testimony showed that he was not paid for a month’s services, and that he hired an extra boy, to whom he paid $81; but he only claimed $145, for which a verdict was rendered in his favor. Although the complaint was for services rendered, and the testimony showed that for that claim the plaintiff was only entitled to $80, yet testimony was admitted, without objection, showing that plaintiff had expended $81 for the extra boy’s hire. The trial justice had a right, therefore, to amend the pleadings so as to conform to the proof, and he committed no error in so doing. The entire evidence, taken together, shows the usual contradictions; the plaintiff contradicting the defendant, and vice versa. It was therefore the duty of the jury to select the side which they credited. They did so, by believing the plaintiff’s evidence, and decided accordingly. We find no error in the admission or exclusion of evidence, and the judgment must be affirmed, with costs. All concur.  