It is submitted that a reversal of this judgment would in any event be placing too much emphasis on procedure at the expense of the merits, in addition to disregarding the command of the statute that we disregard errors if any which would not change the result. (Civ. Prac. Act, § 105.) But where is the error which compels a reversal?
The opinion as submitted seeks a reversal upon a consideration of the pleadings alone, taking no notice of the fact that a trial has been had in which findings of fact and conclusions of law have been made, that an interlocutory judgment has been entered from which an appeal has been taken directly to this court. Since appellant comes to this court under the provisions of section 590 of the Civil Practice Act, "such an appeal brings up for review only the determination of the appellate division" which, in the case at bar, affirmed an interlocutory judgment based on uncontroverted findings establishing the following facts:
Plaintiff and defendant composed a partnership as brokers. Practically the only business done by this partnership was to bring about a sale in which the commissions of the partnership were approximately $48,000. When the commission was about to be paid, defendant requested that two checks be drawn to him, one for $43,000 and one for $5,000. Defendant cashed the check for $5,000, and with the cash in his hand induced plaintiff to believe that that was the total amount of the commission, gave plaintiff one-half of the $5,000, or $2,500, and obtained from plaintiff a release, upon the ground that all concerned in the transaction were executing releases. Plaintiff subsequently learned of the real amount of the commission received, *Page 228 and started this suit to make defendant account and pay over one-half of the commission. Defendant in his answer pleaded the release as a defense. The attorney for defendant then made a motion for judgment on the pleadings on the ground that plaintiff had not alleged in his complaint an offer to return the $2,500 which he had received at the time of giving the release. Plaintiff served a reply in which he alleged that the sum received by defendant for brokerage was approximately the sum of $48,000, and hence plaintiff need not return the $2,500 as he brought himself within the exception to the general rule that, where the plaintiff shows that he would be entitled to recover at least the sum which he has been paid, he need not either allege or prove an offer to return this sum. (Kley v. Healy,127 N.Y. 555; Strout v. Cross, Austin Ireland Lumber Co.,283 N.Y. 406, 416.) The motion was denied at Special Term and the denial was unanimously affirmed by the Appellate Division. For the purposes of a proper disposition of this appeal we may assume, however, that the court erred at Special Term and in the Appellate Division and that the motion should have been granted. This motion, however, has been rendered academic for the reason that subsequently the parties appeared for trial. At this trial defendant, although appearing, put in no evidence whatsoever to dispute the claim of the plaintiff. In fact, defendant admitted the receipt of $48,880 as commissions. As a result, plaintiff showed, and the court found, that the story of plaintiff was true and that plaintiff had received $2,500 as one-half of a commission of $5,000 and was entitled to receive much more than the sum of $2,500 and hence need not either allege the return of the sum of $2,500 already received or offer to do so. In addition, plaintiff showed without dispute that he was entitled, and the court so found, to one-half of the partnership commission of approximately $48,000 instead of the sum of $5,000 which defendant had falsely represented. Not only did the court make this finding, but he sent it to a referee who took the account and upon whose report judgment was entered in the sum of approximately $24,000. *Page 229
As to the lack of allegation by plaintiff in his complaint that he had returned or offered to return the sum of $2,500, not only has the trial rendered this motion academic and moot, but the cases are clear that this court has the power in order to sustain a judgment, to order that the pleadings shall conform to the proof at the trial. (Livingston v. Livingston, 246 N.Y. 234.) In addition, it is provided that, in order to prevent just such a result as is herein occurring, this court shall disregard errors which do not materially affect the result. (Civ. Prac. Act, § 105.) On all these grounds it would seem clear that the judgment appealed from should be affirmed.
It is said, however, that we may not consider the final judgment because the appeal is taken directly from the final judgment to this court and that upon this appeal we may only consider the interlocutory judgment. Although we may consider only the interlocutory judgment upon this appeal, as already indicated, it appears by that judgment, without any evidence on behalf of defendant to contradict, that on any reasonable consideration of the facts, out of the sum of $48,000 admittedly received, plaintiff would be entitled in any event to keep the sum of $2,500, especially as it is found by the trial court that the only business which this partnership did was this one brokerage sale.
It is, therefore, submitted that the judgment appealed from should be affirmed.
LEHMAN, Ch. J., LOUGHRAN and DESMOND, JJ., concur with LEWIS, J.; FINCH, J., dissents in opinion in which RIPPEY and CONWAY, JJ., concur.
Judgments reversed, etc. *Page 230