Sickles v. Shaw ( 1902 )

O’DWYER, J.

(dissenting). I cannot agree with Justice HASCAUL. The action was commenced July 17, 1901,—over nine months after the term created by the lease had expired,—and the evidence abundantly shows that the defendant was owing two months’ rent when the term expired. There is no doubt about that fact, and, although the complaint may incorrectly state the exact due date of the month’s rent, that mistake does not present reversible error. On the other hand, justice requires that the pleading be amended to conform to the proof, and the judgment and order appealed from affirmed, with costs.

Reargument ordered.