Daniel v. Bonsal — 142 A.D. 893

Majority

p. 893

William J. Daniel, Respondent, v. Henrietta M. Bonsal, Appellant.

Headnote

Pleading —judgment must be in accordance with pleadings.

Appeal by the defendant from a judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the clerk of tho county of Westchester on the 29th day of October, 1909, upon the report of a referee.

Judgment reversed and new trial granted, costs to abide the event, unless within thirty days plaintiff procures the Ga Hun lien to be satisfied, the pending .action to foreclose the same to be discontinued, and defendant released from any claim by ,Ga Hun, in which case the judgment is affirmed, without costs. Ho opinion. Hirschberg, P. J., Woodward,. Jehks and Burr, JJ., concurred; Thomas, J., read for reversal.

When the plaintiff sued upon a quantum meruit, he took his chances upon that form of pleading. How it appears that he did not fulfill his contract, and that he did not have the certificate of the architect, as the contract required. The referee is obliged to help him out by making some partial deduction for his delinquencies, and thereupon gives him judgment for his damages, with costs. Unless all rules of pleading may be disregarded, and all the decisions of this and other courts neglected, the plaintiff has not plead properly, and yet he is just as successful and receives the same legal consideration as if he had been quite obedient to authority. The judgment should'be reversed,.

Dissent

p. 894

and if then the plaintiff wishes to move to amend his complaint before another trial, he will probably be permitted to do so upon payment of costs to the present time; but as it is, the whole burden and costs of the litigation are thrown "upon thé litigant who is right, and all the benefits and advantages- accrue to the one who is in the wrong.