28 N.Y.S. 34 | New York Court of Common Pleas | 1894
The effect of subsequent examination and reflection is to confirm the impression intimated on the argument, that, pleading one cause of action, the plaintiff was allowed to recover upon another and different cause of action. In his brief the learned counsel for the respondent says, “The plaintiff brought suit for a quantity of blasting powder sold to the defendant.” In his report the learned referee says, “This suit is brought to recover the contract price” of the powder, and his conclusions of law on the facts proceed upon the satire hypothesis. We cannot so construe the complaint. It alleges an agreement by plaintiff to deposit 60,000 pounds of powder in store at defendant’s place of business, and to sell it to defendant at a certain named price; that defendant stipulated to use said powder “to the exclusion of all other powder; that defendant neglected to use the said powder, stored as aforesaid, but has used the powder of other manufacturers, and that in April, 1889, defendant refused to use said powder; that said powder so stored would all have been consumed before January, 1885, if the defendant had used it to the exclusion of all other; that said powder had deteriorated before April, 1889, through the breach aforesaid and the negligence of the defendant in allowing it to freeze and thaw many times, and had become worthless; that the plaintiff has been damaged by the conduct of the defendant as aforesaid in the sum of four thousand two hundred dollars.” Here, indisputably, is a claim
Bespondent solicits us, by virtue of section 723 of the Code, to conform his complaint to the proof; but the provision expressly qualifies the power of the court by the condition that the “amendment does not change substantially the claim or defense.” Romeyn v. Sickles, supra. Other exceptions of probable validity appear in the record, but since, for the error indicated, the judgment cannot stand, they require no discussion. Judgment reversed, and new trial ordered; costs to abide the event. All concur.