
    THOMAS F. MILLER, Appellant v. HENRY HOLMES, Respondent.
    
      Slander—Variance between the proofs and the allegations of the complaint, when disregarded.
    
    The allegation of the complaint was to the effect that defendant had said of the plaintiff that he had robhed him of four hundred dollars. At the close of the plaintiff’s case the evidence did not warrant more than an inference that defendant had said that the plaintiff had robbed him of twelve hundred dollars. Leave to amend the complaint so as to conform the same to the proof was denied, and the complaint was dismissed because of variance. Sold, to be error, as a variance between an allegation in a pleading, and the proofs is not material unless it has actually misled the adverse party to his prejudice.
    Before Freedman, P. J., and Dugro, J.
    
      Decided July 5, 1892.
    Appeal from a judgment entered upon a dismissal of the complaint at the trial.
    
      Maurice Meyer, attorney, and A. C. Palmer of counsel, for appellant, argued :—
    I. It is not necessary, in order to render words imputing a crime actionable, that there should be the same certainty in stating the crime imputed as would be requisite in an indictment for it. Miller v. Miller, 8 Johns., 74; Gibbs v. Dewey, 5 Cow., 503. If the words, in their natural and ordinary sense, import a criminal charge, they are actionable.
    II. Variance in the slanderous words proved from those charged, disregarded when they could mislead. Boynton v. Boynton, 43 How., Ct. of Appeals. There is no pretense here that the defendant was misled by the allegation in the complaint, as to the amount he charged plaintiff with robbing him of. He certainly was prepared to defend the action as to $1,200, or any other amount, having denied all of the allegations of slander in his answer.
    III. The court will not allow a formal objection of a variance to defeat an action, when it is evident no injury would be sustained by the objector other than depriving him of the mere formal advantage; the court will remedy the defect, even after trial. Every v. Merwin, 6 Cow., 360. The materiality of the variance may be apparent on the pleadings, and in such cases it must be the duty of the court either to exclude the evidence creating the variance or so to amend the pleading as to admit its introduction. Lyon v. Blossom, 4 Duer, 318. When it appears the party was not and could not have been misled, variance between complaint and proof may be disregarded without amendment. Chapman v. Carolin, 3 Bosw., 456. Section, 541 of the Code of Civil Procedure is: “ Where however the allegation to which the proof is directed is unproven, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, but a failure of proof.” It is sufficient to prove the substance of the words alleged, if spoken in .same person, as alleged. Miller v. Miller, 8 Johns., 74. It is sufficient to make out a cause of action for slander, that some part of the slanderous words charged were spoken, and that they were substantially the same, in force and meaning, as those alleged. Schoonoven v. Beach, 23 Weekly Dig., 348.
    IV. The court must, upon application, allow a pleading to be amended at any time during the pendency of the action, even on appeal, if substantial justice will be promoted thereby. Enright v. Seymour, 8 State Rep. C. P. Subject to the limitation, that the party was misled or taken by surprise, there is no restriction upon the power of amendment of pleadings on trial, where the amendment is in favor of justice. Van Ness v. Bush, 14 Abb., 33. A complaint in false imprisonment may be amended at trial, by adding allegations of special damage, if they are proved. Clemons v. Dairs, 4 Hun, 260. In slander, the complaint may be amended at trial, by adding the names of parties. Wood v. Gilchrist, 1 C. R., 117. There can be no new cause of action here; the words charged were spoken at the time alleged in the complaint, and there is no dispute about the words, “ You, Tom Miller, you stole ” (whether $400 or $1,200), is all that is necessary to allege or prove ; there is no material variance; the complaint should have been amended on motion of plaintiff’s counsel, to conform to the proof. Enright v. Seymour, supra.
    
    
      Wager & Acker, attorneys for respondent, argued:—
    I. In an action for tort the cause of action alleged must be proved. The cause of action alleged was not proven, but a different cause of action, hence a failure of proof under Section 541 of Code. Place v. Minster, 65 N. Y., 89; Arnold v. Angell, 62 Ib., 508.
    II. In action for tort complaint cannot be amended at trial by adding a new cause of action. Plaintiff having failed to prove either of the causes of action alleged, his complaint was properly dismissed.
   By the Court.—Dugro, J.

This is an appeal from a judgment dismissing a complaint in an action for slander.

In the complaint there is, among other things, an allegation that the defendant had said of the plaintiff that he had robbed him of four hundred dollars.

At the close of the plaintiff’s case the evidence did not warrant more than an inference that the defendant had said that the plaintiff had robbed him of twelve hundred dollars.

Leave to amend his complaint so as to conform to the proof was denied plaintiff and his complaint dismissed •because of variance.

This was error, for a variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party to his prejudice, etc. § 539 Code Civil Proc.

I think the law upon the subject briefly stated is, “ where the allegation and proof vary as to the words, it is enough if plaintiff proves that a distinct slanderous charge alleged, which is separable from any other unproven words alleged, was uttered in substantially the. Words alleged, it not appearing to have been materially qualified by other words not alleged.” Abbott’s Trial ^Evidence, page 661.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Freedman, P. J., concurred.  