
    Austin B. Trowbridge v. Mathieu Didier.
    ' A defendant has a right to consider the complaint which is served upon-him or his attorney, as that which alone he is required to answer,.and it is upon the issues raised by his answer to this complaint that the cause must be tried.
    The complaint described the promissory note, upon which the action was founded, as payable “ three months after date,” that produced on the trial, although corresponding in all other particulars with that set forth in the complaint, was payable four months after date.
    
      
      Held, that although the variance might formerly have been regarded as fatal, yet, - under the provisions of the Code, it was plainly immaterial, and was therefore properly disregarded by the Judge upon the trial.
    Judgment for the plaintiff affirmed, with costs.
    (Before Duer, Campbell and Boswokth, J.J.)
    April Term, 1855.
    Appeal by tbe defendant from a judgment in fayor of tbe plaintiff.
    Tbe action was brought by tbe plaintiff, as endorsee of a promissory note, bearing date tbe 8tb day of February, 1854, wbicb tbe complainant averred was made by tbe defendant, and whereby be promised, for value received, to pay tbe sum of $100 to tbe order of one Henry Fiorelli. In tbe complaint filed, tbe note was described as payable four months after date, but in tbe copy served on tbe attorneys of tbe defendant, it was stated to be payable three months after date. In all other respects, tbe complaint served was an exact copy of that on file, and, in each, judgment was demanded for tbe amount of tbe note, with interest from tbe 11th of June, 1854.
    Tbe defendant, in bis answer, denied tbe mating of tbe note described in tbe complaint, or that any such note was ever endorsed to tbe plaintiff.
    Tbe cause was tried by consent, before tbe Chief Justice without a jury, on tbe 26th of January, 1855. .Upon tbe trial, tbe counsel for tbe plaintiff produced, and offered to prove, and read in evidence, a promissory note, corresponding with that described in tbe complaint filed. Tbe counsel for tbe defendant then produced and read tbe copy of tbe complaint served, and insisted that, as tbe note offered to be proved was not that described therein, tbe evidence ought to be rejected. Tbe objection was overruled, and tbe counsel excepted.
    Tbe making and endorsement of tbe note were then proved; it was read in. evidence, and tbe plaintiff rested.
    Tbe counsel for tbe defendant then moved that tbe complaint should be dismissed, upon the ground that tbe plaintiff bad failed to prove tbe cause of action, set forth in tbe copy of tbe complaint served on tbe defendant.
    Tbe court denied tbe motion, and tbe counsel excepted to tbe decision.
    
      The jury, under the direction of the court, found a verdict for the amount of the note with interest, subject to the opinion of the court at General Term, upon the exceptions. Judgment was entered upon the verdict, from which the defendant appealed.
    
      Condicf, for the defendant,
    the appellant, in moving for a reversal of the judgment, and the dismissal of the complaint, insisted that the defendant could only be governed by the copy of the complaint which was served upon him, and was not bound to search the office to ascertain whether the original was on file, and that served a true copy — and said that such was the decision of the Supreme Court in Smith, v. Wells, (6 John R. 286.) He then contended that the variance between the note proved, and that described in the complaint as served, was a failure of proof .under § 171 of the Code, and cited many cases to show that a variance, however small, in setting out a bill or note, has always been deemed material and fatal, and that the'rule has invariably been followed that when a contract is declared on, it must be proved precisely as it is laid.
    
      J. & JBurrill, for the .plaintiff,
    argued that as the original complaint on file described the note correctly, any clerical variance between that and the copy served, was a mere irregularity, to be taken advantage of only upon motion; and that even had the note been incorrectly described in the original complaint, still the variance would have been rightfully disregarded on the trial, and this not only under the provisions of the Code, but under a provision in the Revised Statutes, which the Code had not repealed. (Code §§ 169, 170, 171; 2 R. S. § 79, p. 406.)
   By the Court.

Duer, J.

We entirely agree with the counsel for the defendant, that a defendant has a right to consider the complaint which is served upon him, or his attorney, as that alone which he is required to answer, and that it is upon the issues raised by his answer to this complaint that the cause is to be tried. It is therefore undoubtedly true that there was a variance between the proof upon the trial, the note read in evidence, and -the allegations in the complaint, and we incline to the opinion, that this variance before the Code, and notwithstanding the pro-' vision in the Bevised Statutes to which we were referred, would have been regarded as fatal; but this is a question which the wise and liberal provisions of the Code have relieved us from the necessity of considering.

By the express words of the Code, no variance between the allegations in a pleading, and the proof, can now be deemed material, unless it is proved to the satisfaction of the court that the adverse party was actually misled in maintaining his action or defence, (§ 169,) upon the merits, or unless the allegation, to which theN proof was directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, in which last case only is the variance to be treated as a failure of the proof necessary to be given to sustain the action or defence (§ 171).

It is not pretended, in the present case, that the defendant was misled, and indeed it would be absurd to suppose that he was so. He knew that the note which he had given was payable four months after its date; and that the substitution of the word “ three” was a clerical mistake, was apparent on the face of the complaint, which demanded interest from the expiration, not of three, but of four months, from the date of the note. It was, therefore, upon a ground purely technical that the Judge was required to dismiss the complaint, and it is certain, that unless the variance amounted to a failure of proof, it would have been a signal error to have complied with the request.

But it is impossible to say that a variance, which left the material allegation in the complaint of the purport of the note, unproved in a singular particular only, and not in its entire scope and meaning, was a failure of proof, unless § 191 can be expunged from the Code, or its manifest intent be wholly disregarded. It may be quite true that as the law formerly stood, a contract specially set forth in a declaration or plea was, in all cases, necessary to be proved upon the trial, in the exact form in which it was laid in the pleading, but this was one of those technical rules, too frequently “ strangling justice in the net of form,” which the Code was designed to abolish, and, in our judgment, has effectually abolished.

In the case of Catlin v. Gunter recently decided in the Court of Appeals, an usurious agreement that was offered to be proved upon tbe trial, differed not in one, but in every particular, from tbat set forth in tbe answer, but as tbe variance, in tbe opinion of tbe court, did not change tbe entire scope and meaning of tbe de-fence, it was held, tbat it ought to have been deemed immaterial, and upon tbat ground, tbe judgment of this court was reversed, and a new trial ordered. •

Tbat tbe far slighter variance in tbe case before us was properly disregarded on tbe trial, we cannot doubt, and tbe judgment appealed from must therefore be affirmed, with costs.

Judgment accordingly. 
      
       How reported, (1 Kernan, 368.)
     