177 N.Y. 73 | NY | 1903
The complaint was plainly upon the policy issued by the defendant and not for damages for the breach of a verbal contract between the parties. There was evidence to show that, in consideration of the plaintiff's promise to pay the unpaid premium, the defendant agreed to insure the plaintiff's interest in the property mentioned in the policy issued to his assignor, by a proper indorsement upon such policy if it could be obtained, or if not, by issuing a slip or paper to him which "would keep the insurance all right and insure him from that time." If the action had been based upon that contract, the proof was sufficient to have justified the jury in finding for the plaintiff. (Ellis v. Albany City F. Ins. Co.,
But the action was based upon the policy alone, and it is obvious that the proof was insufficient to establish a valid transfer or continuance of the policy in accordance with its requirements and provisions.
This does not fall within the class of cases where, although the complaint is insufficient, the proof is sufficient to authorize a recovery and is admitted without objection, and where the pleadings may be amended to conform to the proof. In this case the plaintiff failed to prove the cause of action alleged, and the evidence tending to establish a different cause of *75
action was objected to upon the ground that it was inadmissible under the pleadings and no amendment was asked for. In such a case, if the plaintiff fails to prove the cause of action set up in his complaint and proper objections are made upon the trial, and no amendment of the pleading is asked for or ordered, a judgment in the plaintiff's favor upon a cause of action not alleged cannot be sustained on appeal, nor after trial can the pleadings be conformed to the proof. (Southwick v. First Nat.Bank of Memphis,
Therefore, it is manifest that the learned trial court erred in admitting, under the defendant's objection and exception, evidence of the verbal agreement between the parties, and also in submitting the case to the jury upon the theory that the plaintiff might recover if the jury should find that such an agreement was made.
The defendant's exceptions to the admission of that evidence and to the charge of the court in that respect were well taken and require a reversal of the judgment.
The judgment should be reversed and new trial granted, with costs to abide the event.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT, CULLEN and WERNER, JJ., concur.
Judgment reversed, etc.
