Graphic Arts Mutual Insurance v. Monello — 44 Misc. 2d 588

Majority

p. 588

Graphic Arts Mutual Insurance Co., Respondent, v. Salvatore Monello, Appellant.

Supreme Court, Appellate Term, First Department,

November 5, 1964.

p. 589

Perez Rosenthal for appellant. Frederick Behr, Jr., for respondent.

Plaintiff did not make out the cause of action alleged in the complaint. On the other hand, its motion to amend the complaint to allege causes of action for unjust enrichment and money had and received should have been granted. The motion having been denied, the defendant was not on notice that he was called upon to defend a cause of action for unjust enrichment; had the motion been granted, the defendant might have offered evidence instead of resting. In the interest of justice, we therefore remand the case to the court below for a new trial. The judgment should be reversed and new trial ordered, with $30 costs to appellant to abide the event.

Concur — Hofstadter, J. P., Tilzer and Gold, JJ.

Judgment reversed, etc.