Shapiro v. Wolf , 214 N.Y.S. 48 ( 1926 )

Per Curiam.

This action was brought in replevin to recover certain goods sold by plaintiffs to one Wolf and found by plaintiffs in the possession of Aaron Silverstein.

The complaint, after stating that the plaintiffs are the owners and entitled to the immediate possession of certain described chattels, alleges that they were on a date named in possession of the defendant Silverstein, who refused to deliver them to plaintiffs upon due demand.

At the trial it was evidently taken for granted that Wolf had obtained the goods from plaintiffs upon false representations, for upon that point there was very little evidence, and the sole point litigated was the defendants’ good faith, plaintiffs testifying in substance that defendants had admitted that he knew all about the transaction, and in substance that he had not given value for the goods.

At the conclusion of plaintiffs’ case defendants’ counsel moved to dismiss on a number of grounds among which was that there was no allegation of fraud in the complaint, although no objection had been taken to the testimony at any stage of the proceedings and although the complaint appears to be in perfectly good form on the authority of Gowing v. Warner (30 Misc. 593). Plaintiffs, at the suggestion of the court, moved to amend their complaint to conform to the proof “ regarding bad faith.” This was manifestly allowable in view of the fact that all of the evidence had been admitted without objection. Moreover, although the court offered to defendants’ counsel the opportunity to plead surprise and suggested that he would adjourn the case for that reason, defendants’ counsel finally declared: “ My client wants to go ahead.” Although the record does not in so many words disclose that the amendment was allowed, the omission is unimportant because the complaint was quite sufficient under the circumstances and because if it had not been, this court on appeal might regard the pleadings as amended to conform to the proof.

Quite apart, therefore, from the question whether the order now appealed from is valid because apparently unjustified by any provision of the Civil Practice Act, the order must be reversed, with costs, and the verdict reinstated.

Order reversed, with costs, and verdict reinstated.

All concur; present, Bijur, Delehanty and Wagner, JJ.