
    Charles A. Belden, Individually and as Trustee for George F. Belden, et al., Respondents, v. Susie E. Fitchett, Appellant, Impleaded with Others.
    
      Belden v. Fitchett, 172 App. Div. 908, affirmed.
    (Argued October 29, 1918;
    decided November 12, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 10, 1916, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover upon a guaranty of payment of rent due under a lease. The answer put in issue the material allegations of the complaint. The principal question was raised by a motion to dismiss the complaint at the close of the evidence, defendant contending that the only parties to the lease were Charles A. Belden. on the one part and the hotel company on the other part; that the guaranty was under seal and the liability of this appellant, if any, must necessarily be to the party who contracted in the lease to let the premises, and that this action was not by him, but by entirely different parties not named or mentioned in the lease. Respondents argued that the defect, if any, was waived because not taken advantage of by demurrer or answer, and that the point of the variance between the allegations of the complaint and the proof could not be presented by the motion to dismiss the action and .direct a verdict.
    
      Edmund L. Mooney, William C. Fitts and Frederick A. Card for appellant.
    
      James M. Fisk for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Collin, Cuddeback, Cardozo and Pound, JJ. Absent: Andrews, J.  