¶1The complaint herein alleges that, on the 22d day of July, 1908, the plaintiff and defendant entered into an agreement in writing wherein and whereby the plaintiff agreed to sell to defendant certain premises in Suffolk county, Yew York, and the defendant agreed to pay the purchase price of $245; and that, upon the payment of the said sum of $245, plaintiff agreed to deliver a deed of the property. The complaint further alleged that the plaintiff had complied with all the conditions of the contract, and there was due under the contract to the plaintiff the sum of $235. The defendant’s answer set up a general denial, *353liquidated damages and a partial defense that the contract was for payment in monthly instalments, and that only $60 was then due, and that the action was prematurely brought as to all but $60 thereof.
¶2At the trial the plaintiff introduced the contract in evidence, testified that only ten dollars was paid thereon, and that he was ready, able and willing to give a deed of the premises. The defendant put in no evidence; and the trial justice dismissed the complaint, stating that, while the contract contained no clause for liquidated damages, the plaintiff had failed to show a cause of action, since he could not sue for the whole purchase price without first tendering a deed, citing Eddy v. Davis, 116 N. Y. 247, and cases therein cited.
¶3The trial justice was correct in holding that, if all the instalments under the contract were due, plaintiff could not, under the authority of that case, recover without tender; hut in this case it clearly appears that all the instalments were not due and, since the contract contains no clause giving the vendor an option to consider all instalments due upon a default in the payment of particular instalments, the plaintiff had no election by which he could make those instalments due. That he mistakenly attempted to exercise such an election is immaterial.
¶4ETo tender was, therefore, necessary to sustain a cause of action for the instalments then due. The sole question, therefore, in this case, is whether, under the pleadings and proof in this case, 'the court should have dismissed the- complaint, or only sustained the partial defense of the answer. The complaint herein has set forth a good cause of action; and, though the proofs do not sustain the plaintiff in his full claim, yet a recovery should he allowed for such amount as was actually due. McCready v. Lindenborn, 172 N. Y. 400. Even though it be urged that, in view of the fact that the complaint asks for the whole contract price and the proof shows that only a part was due, there is a variance between the allegation of the pleading and the proof, the court would he obliged to disregard the variance as immaterial, because the defendant has answered the complaint *354upon the correct theory, as shown by the proof, and has, therefore, not been misled.
¶5The trial court should, therefore, have given judgment to the plaintiff for the sum of sixty dollars, with appropriate costs.
¶6Judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
¶7Dayton and Seabury, JJ., concur.
¶8Judgment reversed and new trial ordered, with costs to appellant to abide event.