37 Misc. 803 | N.Y. App. Term. | 1902
The counterclaim was founded upon an entire contract for a year’s service, and proceeded upon allegations of
Under the well settled rule that an allegation of performance is not supported by proof of an excuse for nonperformance, the motion to dismiss the counterclaim for a variance between the pleadings and the proof should have been granted. Schnaier v. Nathan, 31 App. Div. 225; Gatling v. Central Spar Verein, 67 id. 50.
The plaintiffs’ insistence that the trial be confined to the issues raised by the pleadings is disclosed by the objections taken to the admission of evidence of facts not within the counterclaim, as alleged, and for the error noted the judgment is well assailed.
The judgment should be reversed and a new trial ordered with costs to appellants to abide the event.
Ebeedman, P. J., and Gbeenbaum, J., concur.
Judgment reversed and new trial ordered with costs to appellants to abide event.