
    Edward Burns, Respondent, v. Augustin Walsh, Appellant.
    (City Court of New York
    General Term,
    October, 1894.)
    Where testimony to establish a claim not included in the complaint is admitted without objection, the trial justice has a right to amend the pleadings to conform to the proof.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict.
    
      M. J. Scanlan, for appellant.
    
      H. M. Hitohings, for respondent.
   Fitzsimoes, J.

The plaintiff, an engineer,, claimed that he was hired by the defendant to perform services as an engineer at a salary of one hundred dollars, out of which he should pay twenty dollars per month to an assistant.

The defendant claimed that he should have hired under his agreement two assistants for forty dollars per month, leaving bim a balance of sixty dollars 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 eighty-one dollars, but he only- claimed one hundred and forty-five dollars, 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 eighty dollars, yet the testimony was admitted without objection, showing that plaintiff had expended eighty-one dollars 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.

Ehrlich, Ch. J., and Newburger, J., concur.

Judgment affirmed, with costs.  