No question was raised upon the trial until after the evidence was closed that there was a variance between the proof and the cause of action alleged in the complaint. There was no misapprehension by the defendant as to the precise nature of the plaintiff’s claim, and the defendant gave evidence to meet it. I think that under such circumstances the trial court properly permitted the complaint to be amended to conform to the proof (Martin v. Home Bank, 160 N. Y. 190, 198; Cullen v. Battle Island Paper Co., 124 App. Div. 113; Baumann v. Tannenbaum, 125 id. 770), but erred in granting the nonsuit and dismissing the complaint, and, therefore, the judgment was properly reversed at Special Term.
I think the order of reversal should be affirmed, with costs.
All concurred, except McLennan, P. J., and Eobbon, J., who dissented in an opinion by Bobson, J.