27 N.Y. St. Rep. 268 | City of New York Municipal Court | 1889
It is a settled rule that the allegata and prolata must agree. The latter must support the former. In other words# the plaintiff must prove his case as he has alleged it. Cumiskey v. Lewis, 15 N. Y. St. Rep. 364. The object of the pleadings is to arrive at a specific issue upon a given and material fact. If there be proofs to facts not put in contestation by the pleadings, or allegations of facts not established by proofs, in each case they must be rejected. The Sarah Ann, 2 Sum. 206. Every fact which a party must prove to establish his cause of action or defense must be stated in the pleading, (Gurnee v. Beach, 40 Hun, 108;) and facts which are not alleged cannot be proved, (McKyring v. Bull, 16 N. Y. 297.) The rule touching the statement of facts constituting the cause of action is the same in all cases, legal or equitable; and the rules by which the sufficiency of the pleadings are to be determined are prescribed by the Code. People v. Ryder, 12 N. Y. 438; Pom. Bern. § 527. Kelsey v. Western, 2 N. Y. 501, was an equity case, and the court (at page 506) held: “It is well settled that no proofs can be offered of facts not put in issue by the pleadings, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, and therefore particular care must be taken to put in issue in the bill whatever is intended to be proved by the complainant in the cause; otherwise, he will not be permitted to give it in evidence, for the court pronounces the decree secundum allegata et prolata. The reason of which is that the adverse party may be apprised against what suggestion he is to prepare his defense. ” The rule of pleading is practically the same whether the action be in its nature of legal or equitable cognizance, except
The plaintiff moved to amend his complaint by alleging an agreement on the part of the owner to pay for the work done. The amendment proposed was not of form, but of substance, as it changed the entire nature of the action and proofs. Its purpose was to drop Meres, the contractor, as the debtor, and to substitute in his place Chapin, the owner, as the one primarily liable to him, as an original promisor. Such an amendment might have been permitted on terms or conditions that would not have operated to the prejudice of the defendants, or taken them by surprise. But the trial judge was under no obligation to allow an amendment, even in an equity case. An application for leave to amend a pleading is addressed purely to the discretion of the trial judge, and his denial of it is not reviewable on appeal. Rosenwald v. Hammerstein, 12 Daly, 377. It is needless to discuss what we might have done at trial term under similar circumstances. The question we are to determine is whether the judge below erred,—in other words, whether he acted contrary to his duty,—and the record does not warrant us in deciding that he acted in violation of law. Pleadings are at times amended on appeal, but only to uphold a judgment; never to reverse one.
This leads us to the construction of the statute conferring the right of lien in favor of mechanics and others doing work or furnishing materials towards the erection or alteration of buildings in this city. The term “with the consent of the owner,” contained in section 1, c. 342, Act 1885, must be construed with reference to its obvious intent and meaning. It was not intended to make the owner pay twice,—first to the contractor, and next to the employes of the latter. If, however, a stranger employs a contractor “ with the consent of the owner, ” expressed or implied, the property of the owner will be liable for the claim of the person employed; for the reason that the land, having re
The dismissal was upon technical grounds, not on the merits, and does not bar the plaintiff from maintaining a new action against his employer, whoever he may be. Code, § 1209. The declaration in the judgment that the dismissal was “upon the merits” was either erroneously or inadvertently inserted therein, and must be stricken out. With this modification, the judgment must be affirmed, but without costs.