The sole ground suggested in the prevailing opinion upon which the judgment and order appealed from should be reversed is, that the trial court erred in refusing to dismiss the complaint at the opening of the trial, because it was not alleged therein that thirty days had elapsed before the bringing of the action and after the service upon the village clerk of a notice of plaintiffs claim.
It was alleged in the complaint in express terms that the accident occurred on the 25th day of October, 1900; that the notice was served upon the village clerk within six months after the time of the accident, and that the action was brought within one year from that time.
If the date of the commencement of the action had been stated in' the complaint, to wit, July 3, 1901, concededly the allegation would have been sufficient. The summons was dated July 2,1901; the complaint was verified on that day, and the answer was verified on the twentieth day of the same month. It seems to me that with the pleadings before the court, which disclosed those dates, it was permissible for the trial court to take judicial notice of the fact that-the action was commenced between the 2d day of July, 1901, the' *416date of the verification of the complaint, and the 20th day of July, 1901, the date of the verification of the answer; and if it was com. potent for the court to take cognizance of those facts, then the motion to dismiss the complaint was properly denied.
As we have seen, it was alleged that the accident occurred on the 25th day of October, 1900, and that the notice required by the statute was served within six months from that time; therefore it was served not later than the 25th day. of April, 1901. The action having been commenced in July, 1901, as appears by the summons, complaint and answer, which were before the court, it is clear that the thirty days mentioned in the statute had elapsed after the service of such notice and before the commencement of the action. The plaintiff proved before he rested his case that the action was actually commenced on the 3d day of July, 1901, and the defendant gave no evidence to contradict the fact. We think it is not essential that there should be an allegation in the complaint to the effect that the action was commenced at a particular time, when the fact, as we have seen, clearly and distinctly appeared by the pleadings in the case. At most, the court should have required an amendment of the complaint, and its failure to do so, if that was necessary, was merely an irregularity which was in no manner prejudicial to. the defendant, and, therefore, should not be regarded as sufficient cause for the reversal of the judgment and order, appealed from.
. In 1 Encyclopaedia of Pleading and Practice (p. 581) the rule is stated as follows: “ An amendment to conform to the proof is usually made after the evidence is closed; but it may be made after the argument of counsel, or after verdict or judgment, but only for the purpose of sustaining the judgment, not to reverse it; or in the appellate court the amendment may be regarded as made.”
In Harris v. Tumbridge (83 N. Y. 92) Judge Finch, writing the opinion of the court (at p. 97), said: “ * * * In that respect the complaint was amended by the General Term so as to make it correspond with the actual facts of the contract as developed by the evidence. The power of the court to make such amendment is conceded in a proper "case, but claimed to have been improperly exercised in this. Practically, the only limitation upon the right to amend the pleadings is that a new cause of action must not be introduced. (Code of Civ. Pro. § 723 ; Reeder v. Sayre, 70 N. Y. 180.) *417The amendment did not effect such a result. The cause of action for negligence and want of skill in the performance by the defendant of his duty as agent remained unchanged. A misstatement of the details of the contract was all that was changed, and it was stricken out from the pleading as unnecessary to the cause of action stated, and to some' extent inconsistent with it. If the order granting the amendment is reviewable on this appeal, which admits of question, we see no reason to doubt its correctness and propriety.” •
In Reeder v. Sayre (70 N. Y. 181) the head note is as follows: "Also, held, that the complaint should have been amended by averring the character or rights in which the surviving plaintiffs continued the action, i. e., as survivors; but that as this amendment could have been made on the trial, it could be done here nunc pro tame.” In Gunter v. Catlin (11 N. Y. Leg. Obs. 209), cited with approval in Clark v. Dales (20 Barb. 67), it was said: “ We have now indeed a large discretion in amending pleadings, so as to conform them to the facts of the case as disclosed by the evidence, and we have not ^infrequently exercised this power at a General Term, even when no motion to amend had been made upon the trial.”
In Pratt v. Hudson River R. R. Co. (21 N. Y. 305) the head note is as follows: “ The complaint counting upon the offer and acceptance, without any reference to the provision for a written contract, the variance is merely formal, and this court will conform the pleadings to the proof to sustain a judgment for the plaintiff.”
Many other cases might be cited in support of the proposition that, for the purpose of sustaining a judgment, it is the duty of the appellate court to regard a pleading as amended so as to conform to the proofs where the variance is merely formal.
The judgment and order should be affirmed, with costs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.