109 N.Y.S. 423 | N.Y. App. Div. | 1908
The complaint charges a liability based on the provisions of the Employers’ Liability Act. The real claim of the plaintiff, at the
It is also to be noted that the clause as amended did not contain facts essential to the plaintiff’s cause of action and that the framer of the complaint must have supposed that an assumed risk was a form of contributory negligence, the absence of which must be alleged and proved as a part of the plaintiff’s case. However this may be, it-is wholly unreasonable to interpret the clause as referring to a danger not mentioned or suggested in the complaint.
No one reading the complaint could reasonably infer that the pleader intended to set forth a cause of action arising from a failure to warn the plaintiff of the existence of currents of electricity or drafts of air. It may be further said that the plaintiff might with equal propriety have contended that the complaint contained a
As before observed, it was not claimed or suggested that currents of electricity or air were generated or that the defendant was negligent in failing to give the plaintiff proper instruction concerning them. The whole cause of action was predicated upon the omission to guard the rollers. That was the distinct and specific charge of negligence and if, as the court held, the stack of calenders and all appliances furnished the plaintiff for his employment were in perfect order, and negligence could not he imputed for a failure to guard the rollers, it is clear that the court erred in permitting the plaintiff to prove and to recover upon a cause of action not alleged in the complaint.
While the Code is liberal in disregarding technical defects and omissions in pleadings and in allowing amendment, it does not permit a cause of action to be changed, either because the plaintiff fails to prove the facts necessary to sustain it or because he has mistaken the force and effect of the allegations of the complaint. (Degraw v. Elmore, 50 N. Y. 1; Ross v. Mather, 51 id. 108; Neudecker v. kohlberg, 81 id. 296 ; Day v. Town of New Lots, 107 id. 148 ; Romeyn v. Sickles, 108 id. 650.)
“ The principle still remains that the judgment to be rendered by any court must be secundum allegata et probata / and this rule cannot be departed from without inextricable confusion and uncertainty and mischief in the administration of justice. Parties go to court to try the issues made by the pleadings, and courts have no right impromptu to make new issues for them, on the trial, to their surprise or prejudice, or found judgments on grounds not put in issue, and distinctly and fairly litigated.” (Wright v. Delafield, 25 N. Y. 266; Southwick v. First National Bank of Memphis, 84 id. 420; Truesdell v. Bourke, 145 id. 612.)
“ If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, hut rather to ensnare and mislead his adversary.” (Brightson v. Claflin Co., 180 N. Y. 81.)
All concurred, except Smith, P. J., dissenting; Kellogg, J., concurred in result.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.