Majority
Headnote
Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Annie M. Leutke against the Federal Brass & Bronze Company. From a judgment for plaintiff, rendered by a judge without a jury, defendant appeals. Reversed, and new trial ordered. Walter L. Bunnell, of New York City, for appellant. Maurice Hyman, of New York City, for respondent.Plaintiff sues for certain work done under a contract, to be found in three letters exchanged between the parties. These letters required the work to be “bronze electroplated to match sample.” Plaintiff’s bill of particulars says: “The rail (namely, the work contracted for) was completed by the plaintiff.” Although the plaintiff thus plainly sued as upon full performance, he seeks to sustain the judgment on the theory of excuse for nonperformance which was not pleaded. He admitted that the work was not electro-plated. The issue of excusable- nonperformance was not presented by the pleadings, and was injected only incidentally and accidentally into the trial. If it can be said to have been litigated, the burden was certainly not sustained by the plaintiff. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.