James A. McCafferty & Sons Mfg. Co. v. Roberts Numbering Machine Co.

Judgment and order reversed on the law and facts, and a new trial granted, costs to abide the event. We think the trial court should have granted plaintiff’s motion to amend the pleadings to conform to the proof. The question as to whether there was a novation by reason of the letter of October 20, 1920, and what the intent of the parties was, as evidenced thereby, should have been submitted to the jury as matters of fact. (See Utica City Nat. Bank v. Gunn, 222 N. Y. 204, 207, 209; Lamb v. Norcross Brothers Co., 208 id. 427, 431; Herring v. Mali, 177 App. Div. 820.) Kelly, P. J., Rich, Jaycox, Manning and Kelby, JJ., concur.