¶1The variance between the allegations of the complaint and the proof thereof at the trial did not amount to a failure. of proof. Such variance only arises where there is a failure to prove an allegation in a pleading in its entire scope and meaning. Code Civ. Pro., § 541.
¶2The court must give a liberal construction to pleadings with a view to substantial justice. Code Civ. Pro., § 519.
¶3The contract between the parties was an entire one. It arose out of the sole purpose of the defendants that the plaintiff should examine and appraise the real estate in order that he might qualify himself $s an expert to testify in court in their behalf if they should require his testimony. For this service they agreed to pay him $250 for the- appraisement and $150 in addition, if he were required in court to testify in connection with the appraisement which he had made. The value of the services which might he rendered by the plaintiff as an expert witness to the defendant depended on and grew out of his appraisal of the real estate, and such service as -an expert witness was, under the terms of the contract, incidental to his employment as an appraiser.
¶4The plaintiff made the appraisal, but his testimony in relation thereto was not required by the defendants.
¶5At the trial the plaintiff’s own testimony clearly indicated that he had earned only that portion of the contract price relating to the appraisal of the real estate, viz., $250.
¶6The defendants’ answer and proof admitted their liability to pay this plaintiff $250 for the apprai.sal.
¶7On this evidence the conrt allowed the case to go to the jury for its determination as to what the contract was and as to whether the whole amount claimed by the plaintiff, viz., $400, was due to him or only the sum of $250, as claimed by the de*778fendants. This was improper. There was no disputed fact for, determination by the jury. The court should have directed a verdict for the plaintiff in the sum of $250 and interest, amounting to $4.20, in all $254.20.
¶8The jury rendered a verdict for the full amount claimed by the plaintiff with interest and judgment thereon was entered against the defendants with costs.
¶9On appeal by the defendants the General Term of the City Court reversed the judgment and ordered a new trial. From that order the plaintiff now appeals to this court, having given the stipulation required by the Code of Civil Procedure, § 3191, that judgment absolute be rendered against him if the order appealed from is here affirmed.
¶10In view of the character of the testimony the order of the General Term of the City Court of New York should’not be affirmed, because it should not have reversed the judgment of the trial court and directed a new trial, but should have modified the judgment by reducing the amount $406.73 specified in the judgment to the sum of $254.20.
¶11This court has the power to now render such judgment. Freel v. County of Queens, 154 N. Y. 661.
¶12Let the judgment of the General Term of the City Court be reversed and the judgment of the trial court be reduced to $254.20 and as so modified affirmed, without costs of either appeal to either party.
¶13Freedman, P. J., and MacLean, J., concur.
¶14Judgment of General Term and judgment of trial court reduced to $254.20 and as so modified affirmed, without costs of either appeal to either party.