
    EDWARD P. FURLONG, Appellant, v. ROBERT GAIR, et al., Respondents.
    
      Pleading—false representations, how alleged—failure to allege properly, 'when waived.
    
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal from judgment entered upon the report of a referee in favor of the defendants.
    The court, at G-eneral Term, after consideration of the facts, and of findings of the referee thereon, said : “As to the alleged falsity of plaintiff’s representations, the only charge made in the answer in this respect occurs in the counter-claim, wherein defendants aver that by reason of plaintiff’s ‘ said false representations ’ they suffered damage, &c. This averment refers to certain representations set forth in a preceding defense, but the said representations were not then and there, nor are they in any other part of the answer, described as having been false. If, therefore, the testimony given upon the trial in support of the theory involving the falsity of the representations as the foundation of the counter-claim, had been duly objected and excepted to, the finding of the referee that they were false, and that, by reason of such false representations, the defendants suffered damage in the sum of $142.46, could not be sustained in the present state of the pleadings. The testimony came in, however, without objection; and the question of falsity seems to have been litigated upon it as though the issue had been fully made by the pleadings. Under these circumstances the review to be made, if any were necessary, would have to be confined to the sufficiency of the evidence. But this has been rendered unnecessary by the finding that the contract, as found, was terminated by notice. Upon such termination, the -defendants became entitled to an accounting ; and in the course of that the sum of $142.46 is to be .allowed to them for advances and expenses in excess of profits, even if they should not be entitled to recover it as damages for false representations. The question of falsity is not one, ^therefore, which affects the result, so far as the amount is concerned.”
    
      Truman H. Baldwin, attorney, and Charles W. Hassler, of counsel, for appellant.
    
      Arthur, Phelps, Knevals & Ransom, for respondents.
   Opinion by Freedman, J. ; Sedgwick, Oh. J., concurred.

Judgment modified by deducting therefrom $269.83 erroneously allowed defendants for profits subsequent to their rescission of the contract with plaintiff, and by making recovery of defendants dependent upon a reassignment of their interest in the patents, and, as thus modified, affirmed, without costs to either party on this appeal.  