
    Edward J. Byrne, Appellant, v. John Gillies Company and John Gillies, Respondents.
    Second Department,
    May 26, 1911.
    Pleading' — work and materials — election as to theory of action — appeal—: failure to except.
    Where a complaint for the value of work and materials alleges in a single cause of action that the agreed price and reasonable value of the mate rials and work was a certain sum, it is improper to compel the plaintiff to elect whether he will proceed upon the express contract or upon a quantum meruit.
    
    Where such election is compelled and he proceeds upon an express contract, and evidence is given by defendant’s own witnesses upon which the plaintiff might have recovered on a quantum meruit, it is improper to deny a recovery and to dismiss the complaint.
    Although there was no exception to the rulings of the court compelling the election and precluding a recovery on a quantum meruit, the error is one of law and the Appellate Division has jurisdiction to review it.
    Appeal by- the plaintiff, Edward J. Byrne, from a judgment of the Municipal Court .of the city of New York, borough of Brooklyn, in favor of the defendants, rendered on the 10th day of November, 1910.
    
    
      James I. Cuff, for the appellant.
    
      Magner & Carew, for the respondents.
   Rich, J.:

This action is brought to recover for work and materials, and the complaint, in a single cause of action, alleges “That the agreed and reasonable value of the said materials and said work, labor and services was the sum of Two hundred and seventy-six and 40/100 ($276.40) Dollars.” Upon the trial the ' plaintiff was required to elect as to whether he would proceed upon the theory of an express contract, or upon a quantum meruit, and he chose to proceed upon the theory of a special contract. There is evidence, given by witnesses produced by the defendants, upon which plaintiff might have recovered upon a quantum meruit to the extent of from seventy to eighty dollars, and it was improper to preclude a recovery upon a quantum meruit or to compel the election. (Walar v. Rechnitz, 126 App. Div. 424; Rubin v. Cohen, 129 id. 395; Lockhart v. Hamlin, 190 N. Y. 132; 1 Nichols N. Y. Pr, 1085.) . While it does not appear that an exception was taken to this ruling, nevertheless the error was one of law and this court has jurisdiction to review it. (Engler v. Richardson, 133 App. Div. 419.)

The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Jenks, P.' J., Hirsohberg, Burr and Woodward, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  