Memorandum:
Inasmuch as the parties elected to depart from the issues as made by the pleadings and to try other issues relating to the merits of the controversy, including the counterclaim, we feel that the Referee should have granted plaintiff's motion to amend the pleadings to conform to the proof (Viennese Melody v. Majestic Refrigerator Corp., 279 App. Div. 243), and should also have dismissed the counterclaim. In our opinion, the evidence establishes that...
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