Prahler v. Gatchel , 159 N.Y.S. 1137 ( 1916 )

Order reversed, with costs, and verdict reinstated, and complaint amended to conform to proof. Held, that inasmuch as evidence of refusal by defendant to perform his contract, thereby waiving tender for inspection and approval, was received without objection by defendant on the ground that such evidence was inadmissible under the complaint, because not pleaded, the trial court should have ordered the complaint to be amended to conform to the proof. All concurred.