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Sichel v. Baron

96 N.Y.S. 186 Court N.Y. App. Term Decision date 1905-11-24 English

Delivered by MacREAN, J.

Contents

Majority

p. 186
SICHEL v. BARON.
(Supreme Court, Appellate Term.
November 24, 1905.)

Headnote

Pleading—Bill of Particulars—Office.
Plaintiff brought an action in the Municipal Court to recover damages for breach of contract, and filed a bill of particulars which referred tó a lease by plaintiff and a failure of defendant to pay rental. The trial justice found ‘‘that defendant contracted to engage board and lodging for the season,” and rendered judgment for plaintiff. Held that, since the bill of particulars is not a part of the pleadings and cannot enlarge the cause of action, there was no variance between the finding and the cause of action pleaded by plaintiff.
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Emily Sichel against Albert Baron. Erom a judgment for plaintiff, defendant appeals.
Affirmed.
Argued before SCOTT, P. J., and GT. RDERSREEVE and MacREAN, JJ.
Einstein, Townsend & Guiterman, for appellant.
Werner & Fox, for respondent.

According to the return, the plaintiff brought this action to recover damages' for breach of contract, and upon a conflict of evidence the trial justice found “that defendant contracted to engage board and lodging for the season,” and rendered judgment in favor of the plaintiff. This was not recovery on another cause than the one pleaded, notwithstanding the particulars referred to a lease by the plaintiff and failure to pay rental; for “the bill of particulars is not a part of the pleadings and cannot enlarge the cause of action.” Toplitz v. King Bridge Co., 20 Misc. Rep. 576 , 580, 46 N. Y. Supp. 418 .

Judgment affirmed, with costs. All concur.

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