Majority
p. 336(7 Misc. Rep. 171.) OWENS v. FLYNN, Marshal. (Common Pleas of New York City and County, General Term. February 5, 1894.) Argued before BISOHOFF and GIEGEBICH, JJ.
Headnote
Judgment—When not According to Pleadings and Prooe.A judgment for less than the sum claimed in the complaint is not according to the allegations and proof where there is no evidence on which a reduction of the'claim could be based.
Appeal from eleventh district court.
Action by John Owens against Bichard Flynn, one of the marshals of the city of Bew York, to recover $160 damages for the conversion of property alleged to have been held by plaintiff as pledgee, by reason of which conversion, his lien was destroyed. From a judgment in favor of plaintiff, rendered by a justice without a jury, for $40 damages and $5.50 costs, plaintiff appeals. Beversed.
W. Arrowsmith, for appellant.
Clarence A. Sears, for respondent.
The plaintiff’s lien as stableman for the sum of $160 was perfected in accordan.ce with the requirements of the statute, (Laws 1892, c. 91; Eckhard v. Donohue, 9 Daly, 214 ; Lessels v. Farnsworth, 13 Daly, 473 ,) and no evidence upon which a reduction of the damages by $120 can be based, appears from the record. It is unnecessary to consider whether the liens claimed by the plaintiff as warehouseman and pledgee were sufficiently established, as the judgment cannot stand in any event, not being secundum allegata et probata. Fuld v. Kahn, 4 Misc. Rep. 600 , 24 N. Y. Supp. 558 . The judgment should be reversed, and a new trial ordered, with costs to the party there prevailing.
Cases cited
- Fuld v. Kahn 4 Misc. Rep. 600 p. 336