
    Charles Jackson, Resp’t, v. William J. Hovey, App’lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed December 21, 1892.)
    
    Variance—Pleading served.
    In an action brought in the municipal court of Buffalo to recover for services as hostler, the copy of the complaint served on defendant demanded judgment for twenty dollars, while the original filed with the court demanded forty dollars. A defense was made to the whole of plaintiff’s claim, and no objection raised before the trial court as to the variance in the complaint. II< Id, that a judgment for plaintiff of forty dollars would not be disturbed on appeal.
    Appeal from judgment of the municipal court of Buffalo in favor of plaintiff.
    
      Clinton B. Gibbs, for resp’t; Walter S. Jenkins, for app’lt.
   Titus, Ch. J.

This action was brought in the municipal court to recover of the defendant for work and services as hostler, in taking care of his horses, and the plaintiff in liis complaint claims for three months’ services at the rate of twenty dollars per month, less the sum of twenty dollars, which the defendant has paid him. The complaint, as it appears in the return, demands a judgment for forty dollars and costs. It appears from the affidavits accompanying the return that the copy of the complaint which was served upon the defendant with the summons demanded but twenty dollars judgment. The complaint, on its face, shows that the plaintiff is entitled to forty dollars. It further appears from the affidavits that when the complaint was originally prepared the typewriter copy contained the demand for twenty dollars; that before it was verified and served the demand was changed in the original complaint from twenty to forty dollars, but that the mistake was not corrected in the copy served upon the defendant. This seems to be conclusively established by-the plaintiff’s affidavits, which are not, in that particular, disputed by the affidavits of the defendant.

The municipal court act, under which the municipal court of Buffalo was organized, is now incorporated into and forms a part of the revised charter of the city. By § 459, in an action arising on contract for the recovery of money only, the plaintiff, at the time of issuing the summons, may file with the clerk of the court a written complaint, setting forth, in a precise and concise manner, the facts constituting his cause of action, specifying the amount actually due from the defendant to the plaintiff, and for which the plaintiff will demand judgment. The complaint must be subscribed by the plaintiff or his attorney, and verified in the manner prescribed by the Code of Civil Procedure, and must, together with the summons, be served upon the defendant. By § 461 it is provided that “ in case the defendant fails to answer the complaint, as herein provided, he shall be deemed to have admitted the allegations of the complaint, and the court, upon the filing of the summons and complaint, with the proof of due service thereof, shall forthwith enter judgment for the amount demanded in the complaint, without further proof.”

These provisions are practically the same as the sections of the old Code ; where the action arose upon contract for the recovery of money only, the complaint was required to be served with the summons, which must state the amount claimed, when the clerk could enter judgment without application to the court. The practice is practically the same under the present Code of Civil Procedure. §§ 420 and 1212.

Section 1207 provides, when there is no answer the judgment shall not be more favorable to the plaintiff than demanded in the complaint. When there is an answer, the court may permit the plaintiff to take any judgment consistent with the case made and embraced within the issue.

It was held in Trowbridge v. Didier, 4 Duer, 448, that the defendant has the right to consider the complaint which is served upon him as that which he is required to answer, but under the Code no variance between the allegations of a plaintiff’s pleading and the proof can now be material, unless it is shown that the adverse party was actually misled. So it is provided by the municipal court act, § 458, that “ a variance between the proof on the trial and the allegations in a pleading shall be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby,” and the pleading may be amended at any time, even upon appeal, when, by such amendment, substantial justice will be promoted.

It cannot be seen how the defendant has been prejudiced. A defense was made in the court below to the whole of the plaintiff’s case, and he resisted a recovery for any sum. The demand for judgment was not a material factor in the case. The result would not have been different if the defendant had raised the objection upon the trial, as the court would have been obliged to allow an amendment making the demand correspond with the proofs. But no amendment was necessary. The complaint as it was verified and filed with the court demanded judgment for forty dollars.

If the defendant had not appeared in the court below a'different question would be presented.

The plaintiff could not then have taken judgment against the defendant for a greater sum than that demanded in the copy served upon him. This provision for taking judgment by default for the amount demanded in the complaint has no force or application where the defendant appears and answers, as he may do. Section 460.

The issue is then joined, and the rules applicable to ordinary proceedings in that court control, and the complaint in the action filed with the court fixes the rights of the parties, the cause of action and the amount he is entitled to recover.

The case of Pharis v. Gere, 81 Hun, 444, cited by the defendant’s counsel upon his brief, has no application. There the court would not allow the plaintiff to amend his complaint so as to recover treble damages which were awarded plaintiff, but limited him to the amount claimed in the complaint. As has been stated, no amendment was necessary here, as the complaint claimed an amount large enough to cover the verdict.

The proceedings in justice’s court which apply to the municipal court, § 457, Revised Charter, are necessarily informal, and great particularity is not required. Section 2940 of the Code of Civil rrocedure provides that a party may state his claim to a justice of the peace, and he need not formally demand judgment for any sum, but in making his proof the justice will give him such judgment as the proof warrants within the limit- of his jurisdiction.

It seems to me, therefore, that the judgment should be affirmed, with costs.

Hatch and White, JJ., concur.  