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EMBIEN PROPS., INC. v. EMMADINE FARMS, INC.

282 A.D. 1047 (1953)

Embien Properties, Inc., Appellant, v. Emmadine Farms, Incorporated, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 7, 1953.

Judgment, insofar as appealed from, unanimously affirmed, with costs.

While the judgment is not strictly in accordance with defendant's pleadings, the variance is immaterial. (Civ. Prac. Act, § 434.) The findings of the trial court and the judgment thereon are supported by the evidence, which was received without objection, and the action appears to have been tried on the theory upon which the judgment was rendered. Under such circumstances

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