29 Misc. 627 | N.Y. App. Term. | 1899
The question underlying this appeal is whether, on an allegation of an express contract to pay for services rendered, evidence, of facts establishing an implied contract, is admissible without amendment of the pleading.
The material portion of the complaint is thát “ he (plaintiff) rendered professional services to the said defendant, at her special instance and request, of the fair value of nine hundred dollars.” A general denial was interposed. There have been two trials of the action. Upon the first a verdict was directed for the defendant at the close of the plaintiff’s case, but the judgment entered thereon was reversed on the ground that, instead of such a direction, there should have been a dismissal of the complaint, for the reason that the proof tended to establish only an implied contract, which had not been pleaded. In the opinion of the General Term it was strongly intimated that an amendment of the pleading was a prerequisite to the plaintiff’s success in the action, unless he was prepared to prove the express contract alleged. After the lapse of almost a year the plaintiff brought on the new trial without having taken any steps, in the interim, to amend his complaint. At the opening, and again in the course of the trial, the plaintiff moved to strike out the words “ special instance ” from the allegation quoted. The defendant strenuously objected, urging that, as the plaintiff had disregarded the caution in the opinion and had neglected to apply at Special Term for an amendment, she (defendant) had come prepared to litigate merely the issue of express employment. The learned judge, without regard to the- question whether he had the power to grant the amendment, denied it, in his discretion, on the ground of the plaintiff’s laches. That exercise of discretion is not reviewable here (Kreizer v. Allaire, 16 Misc. Rep. 6; Miner v. Baron, 131 N. Y. 677); and all that remains for our determination is whether the evidence offered was admissible under the pleading as it stood. The plaintiff admitted, on the record, that he had not been employed by the defendant but by her husband, whose agency or authority, however, he could not prove; and that he rested “this
In the case at bar, the plaintiff specifically set forth an express contract, resting in his direct employment by the defendant. On the trial he completely abandoned this, admitted that there was no express contract, that he could not prove employment, and thus receded from every material allegation of the complaint. He sought to substitute a cause of action wholly independent of any employment. The acceptance of benefits resulting from valuable services may well create a cause of action and an obligation to pay their reasonable value. But such a cause of action, derived from presumptions of law, is entirely different from one which flows from the express contractual relation of the parties. The gravamen of this complaint is employment; facts, which would fasten liability on a different theory, belong to a different cause of action. We are of the opinion that, under the express contract pleaded, evidence of the implied contract based on the
Fbeedman, P. J., and MacLean, J., concur.
Judgment affirmed, with costs to respondent.