
    Murray Mass, Appellant, v. Viemont Rug and Carpet Cleaning Company, Respondent.
    Supreme Court, Appellate Term, Second Department,
    January 7, 1958.
    
      Solomon B. Terkeltaub for appellant.
    
      Henry Gallop and S. Frederick Placer for respondent,
   Per Curiam.

Defendant on cross-examination conceded that the color of the fabric had run. He had made a test patch before shampooing the sofa which should have advised him that in this instance shampooing would be a negligent manner of doing the work; that this particular sofa called for dry cleaning. Either his work was negligent or his test patch was negligent. In any event, in addition to negligence, there was a breach of warranty and plaintiff’s motion to conform the pleadings to the proof should have been granted in view of the fact that defendant could not be surprised because the bill of particulars had expressly contained the information about the test patch and defendant’s representations.

The judgment should be unanimously reversed on the law and the facts, with $30 costs to plaintiff, and judgment granted in favor of the plaintiff for $350, with costs.

Pette, Hart and Di Giovanna, JJ., concur.

Judgment reversed, etc.  