
    Barth, Respondent, v. Walther, Appellant.
    In an action to recover for personal property sold and delivered, and claiming a specific balance due, a judgment entered on the report of a referee, for a less sum than the balance claimed in the complaint to be due, will not be set aside, although he received proof that more items in number were sold, and their aggregate value was greater, then the complaint or bill of particulars specified, when no objection was made at the trial to the reception of the evidence, and there is no reason to suppose that injustice has been done.
    In such a case, an order may, properly, be made, conforming the complaint to the-facts proved, without imposing the condition that the plaintiff consent to a new trial and pay the costs of the former trial.
    (Before Campbell, Bosworth, and Hoffman, J.J.)
    Jan. 19; Jan. 27, 1855.
    The complaint states a cause of action arising upon a sale between certain dates by the plaintiff to tbe defendant of thirty-six dressed hogs, alleged to be worth $327.87, admits a payment of $150 on account, and claimed that a balance was due of, and prayed judgment for, $177.87, with interest from the 15th of October, 1854. A bill of particulars had been rendered, which stated plaintiff’s claim to be thirty-six dressed hogs, weighing 3,629 lbs., at nine cents per lb., and that they were worth $327.87.
    
      L. Livingston, the referee to whom the action was referred, reported that the plaintiff sold forty dressed hogs, of the average weight of 110 lbs. each, that the market value was nine cents per lb., and that they were worth $396. That the defendant had paid to the plaintiff, on account of them, $250, and that the plaintiff was entitled to a judgment for $146, the balance. No objection was made on the trial before the referee, to proof being given that forty hogs were sold, and the proof that the market valué was nine cents per pound was elicited by the defendant.
    After the referee reported, and before judgment was entered, a Judge of this court made an order allowing the complaint to be amended so as to conform to the facts found by the referee and appearing by his report, in respect to the amount due to the plaintiff.
    
      A judgment haying been thereupon entered upon the report of the referee, the defendant annealed from the judgment to the General Term.
    
      Ratcliff and Wheedon, for the appellant,
    insisted, that as the complaint and bill of particulars, alleged a claim, based on the sale of thirty-six hogs, weighing 3,629 lbs., and worth $327.87, the referee erred in receiving proof of the sale of forty hogs, worth $396, although he had reported a less sum due to plaintiff, than the complaint stated; and that the order conforming the complaint to the facts proved was erroneous, and at all events could only have been made, upon the terms of granting to the defendant a new trial, and paying his costs of the trial already had.
    
      Ashhy and Macdonough, for respondent.
   By the Court.

Bosworth, J.

The Code allows any amendments to be made which will conform the pleadings or proceedings to the facts proved, when the amendment does not change substantially the claim or defence, § 173.

The claim substantially was that the defendant owed the plaintiff a balance of $177.87, for dressed hogs, sold and delivered between the 1st of August, 1853, and the 1st of November, 1853. The substance of the defence was, that not over $25 was due to the plaintiff. The complaint stated that thirty-six hogs were sold and delivered. This the answer denied, by denying each and every allegation of the complaint, but it did not state how many had been delivered.

The complaint said, those delivered were worth $327.87, and' $150 had been paid on account. The answer averred they were not worth over $260, and that $250 had been paid on account.

As has been stated, no objection was made on the trial to the plaintiff’s proving that he delivered forty, that their average-weight was 110 lbs. each, and the proof given by the defendánti of their market value was adopted by the referee. The amendments made conformed the pleadings to the facts as found, upon evidence given, and submitted to the referee without objection.

The sum reported in favor of the plaintiff is less than the amount sought to be recovered, and this case, therefore, differs from Corning v. Corning, (2 Seld. 97.)

In Spaun v. Veeder, (5 Cowen, 503,) a plaintiff was allowed to amend his bill of particulars after a new trial granted, and it had been twice subsequently noticed, upon paying the costs of the motion, unless the defendant varied his defence, in which event it was to be on payment of all costs subsequent to the plea.

In Saltus & Saltus v. Bayard and others, (12 Wend. 228,) a plaintiff, after a cause had been at issue two years, and twice noticed for trial, was allowed to amend his declaration, on payment of costs of the motion only, unless the pleas were withdrawn, or a new defence became necessary.

In Every v. Merwin, (6 Cowen, 360-368,) the court allowed an amendment to be made after a report of referees, and after a motion to set it aside, to avoid the effect of a variance, on payment of the same costs, as if the amendment had been made previous to the hearing before the referees.

We think the amendment was such a one as the Code authorized, and was designed to provide for, and it not appearing from any paper read in opposition to the motion to amend, that granting the motion could work any injustice to the defendant, the order should not be disturbed, nor the judgment of the referee reversed, merely because the referee found, on evidence not objected to, that forty instead of thirty-six hogs were delivered.

The objection that the evidence given was insufficient to warrant the finding of the referee, cannot prevail.

Though slight, and not very satisfactory in consequence of its want of precision, it was proper to be submitted to a jury, and if credited .warranted the finding.

Both 'parties did their business very loosely. This is as well illustrated by the evidence, relied on by the defendant to prove payments, as by that given by the plaintiff of the number of hogs he had delivered. We do not think it so apparent that injustice has been done, that it is our duty to interfere with the report. The judgment must, therefore, be affirmed.  