
    The Union Bank of Rochester, Pl’ff, v. Harris Newman, Def't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    Variance—Admissions in pleading.
    In an action on a promissory note the complaint alleged that said note was' made and delivered by the defendant to the payee for value and by the payee endorsed to plaintiff for value. The answer admitted these facts and alleged that the note was made and delivered to the payee upon an usurious agreement. The case was tried and submitted on the issue whether the note had its inception in the hands of the payee or was made and endorsed for the purpose of being discounted by plaintiff and whether the payee acted as defendant’s agent in procuring the same. Held, that an objection that this theory of the case was excluded by the allegations admitted by the answer could not be raised for the first time on appeal; that the parties having by tacit consent adopted an issue other than that which was formed by the pleadings could not afterwards object that the result was contra allegata.
    
    Motion by defendant for a new trial on a case and exceptions ordered to be heard at the general term in the first instance, after verdict for the plaintiff at the circuit.
    
      George W. Reed, for the motion; George Truesdale, opposed
   Dwight, P. J.

The action was on á promissory note of $1,000 made by the defendant, payable to the order of George Trues-dale, three months from date. The complaint set out the note and alleged that it was made and delivered by the defendant to the payee for value received, and that the latter subsequently, for value received, endorsed and transferred the same to the plaintiff. The answer expressly admitted these allegations of the complaint and averred that the note was so made and delivered to Truesdale upon a corrupt and usurious agreement by and in pursuance of which the latter was to, and did in fact reserve and secure to himself interest at the rate of ten per cent on the amount of the note for the period of three months.

Under these pleadings the issue tried at the circuit and submitted to the jury was whether the note had inception in the hands of Truesdale, or whether it was made by the defendant and endorsed by Truesdale and one Doty as accommodation endorsers for the purpose of being discounted at the plaintiff’s bank, and whether Truesdale acted as the agent of the defendant in procuring the endorsement of Doty and the discount by the plaintiff. , That was the theory of the case which the evidence on the part of the plaintiff tended to establish, and which was sustained by the verdict of the jury. The defendant now objects that the theory mentioned was excluded by the positive allegations of the complaint which were admitted by the answer, and that the recovery was contrary to the facts thus conclusively established.

The objection would undoubtedly have been a good one if it had been raised on the trial. The complaint clearly alleges the inception of the note in the hands of Truesdale as a subsisting obligation, and its transfer by him to the plaintiff, and these allegations are admitted by the answer. The defendant was, therefore, entitled to avail himself of those facts on the trial as conclusively established for all the purposes of the action, but unfortunately for his defense he failed to do so. There is no exception in the case which raises the question of the effect of the pleadings upon the issues actually tried. The case was tried throughout as if the question whether Truesdale was the lender of the money or an accommodation endorser were an open one. That was the one question submitted to the jury by instructions of the court, to which no exception was taken. Indeed the requests to charge made by the defendant all assumed that the jury were to find, upon the evidence, whether the note had inception in the hands of the payee, and there was nowhere a suggestion that that question was foreclosed by the pleadings.

The case is plainly one in which the parties by tacit consent adopted for the purpose of the trial an issue other'than that which was formed by the pleadings; and having done so, it is now too late for either to object that the result was contra allegata. Under the issue actually tried the instructions of the court were entirely correct, the evidence objected to was plainly relevant, and the verdict was in accordance with the weight of evidence.

For the reasons indicated we think the motion for a new trial must be denied.

Motion for a new trial denied, and judgment ordered for the plaintiff on the verdict, with costs.

Macomber and Corbett, JJ., concur.  