Majority
p. 341Alfred Pionier, Resp’t, v. John E. Alexander, App’lt. (New York Common Pleas, General Term, Filed April 2, 1894.)
Headnote
Judgment—Pleadings—Proof.A judgment must be secundum allegata et probata.
Appeal from a judgment of the district court in the city of New York for the third judicial district rendered by the justice, without a jury, in favor of the plaintiff. Action for services.
Henry G. Harris, for app’lt; Mias Rosenthal, for resp’t.
The plaintiff sued to recover the sum of $152.-50, the amount claimed being made up of wages for ten weeks,
p. 342
at $15 per week, and an item of $2.50 for materials furnished. By the plaintiff’s evidence it ought to established the existence of a contract of hiring for these ten weeks and the plaintiffs due performance. To the contrary appears the defendant’s evidence that there was no such contract, that plaintiff had been “laid off” and that $40 had been paid him by defendant from time to time, more as an act of charity than for any other reason. Plaintiff admitted that $15 had been paid him, when computing the amount of his claim, as appears from the bill of particulars. The justice rendered judgment in favor of the plaintiff, in the sum of $58.50 exclusive of costs, and from this judgment the defendant appeals. In view of the rule that a judgment must be a secundum allegata et probata, it is clear that this appeal should prevail. By accepting the plaintiff’s evidence as true, the justice should have awarded the full amount claimed. On the other hand, had he believed the defendant's witnesses, a judgment for the defendant should have resulted. It is true that a recovery of $127.50 might have been had in view of the defendant’s testimony that he had paid plaintiff $25 more than such plaintiff admitted having received during the period in question, but in no aspect of the case is the judgment as rendered to be supported. See Fuld v. Kahn, 4 Misc. R. 600; 54 St. Rep. 134 . Judgment reversed and new trial ordered, with costs to abide the event All concur.