
    MATTHEWS v. MATTHEWS.
    (Supreme Court, General Term, Third Department.
    September 27, 1894.)
    Practice in Civil Cases—Dismissal of Complaint.
    It is error to dismiss a complaint where the allegations are sufficient to sustain a recovery as to a part of the relief demanded, though insufficient as to the greater part.
    Appeal from special term, Clinton county.
    Action by Helen Matthews against Horace Matthews. There was a judgment in favor of defendant, and plaintiff appeals. Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    McLaughlin & Rowe, for appellant.
    A. W. Boynton, for respondent.
   PER CURIAM.

The former judgment obtained in this action by the plaintiff was reversed by the court of appeals (133 N. Y. 679, 31 N. E. 519) on the ground that the complaint did not set forth an equitable cause of action, and the evidence produced on the trial did not show that the plaintiff should be awarded a judgment for a specific performance. That court held that the cause of action alleged in the complaint was a legal one,—not for a specific performance,—and hence the allowance to the plaintiff of the value of the property agreed to be conveyed by the defendant as damages was erroneous. But in the opinion of Judge Finch he states that the plaintiff was entitled to recover the value of her services, when the defendant asserted the invalidity of the parol contract; and, possibly, in her own right, and as assignee of her husband, she might be entitled to recover other damages. On the last trial the court below decided that plaintiff could not recover for her services, because of the want of appropriate allegations in the complaint. While it is true that, unless the complaint shall be amended, the plaintiff cannot recover the greater part of the damages she may be entitled to, yet we think that under the allegations set forth therein she was entitled to a judgment for a small sum for her services and the services of her husband. The first cause of action in the complaint states the facts of the transaction between plaintiff, her husband, and defendant, and alleges "that, after taking possession of said real estate, and while in the occupation thereof, as hereinbefore stated, this plaintiff and the said Henry Matthews made valuable and permanent improvements upon the same, to their cost and expense of $100.” At the end of the complaint the plaintiff demands judgment against the defendant for the sum of $2,500. We are unable to see why, under the allegations so contained in the first count of the complaint, plaintiff was not entitled to recover for the improvements put on the defendant’s place by her and her husband while in occupation thereof under the parol contract. There was evidence showing the amount of labor performed by plaintiff and her husband in making said improvements, and the value thereof, which does not appear to have been contradicted. The allegations in the complaint we think sufficient to allow plaintiff to recover for the value of the labor in making improvements as proved on the trial, or at least plaintiff was entitled to a finding of the trial judge in that regard. The evidence also seems to show the conversion by defendant of certain crops belonging to the plaintiff, as alleged in the third cause of action stated in the complaint. We think, therefore, that the learned trial judge inadvertently overlooked the fact that, under the pleadings and evidence given on the trial, plaintiff was entitled to recover a small sum for services in making repairs which were set forth in the complaint and for crops converted by the defendant, and that hence the judgment should be reversed, and a new trial granted.

The court of appeals having held that the cause of action set out in the complaint is not equitable, or one for a specific performance, and that the facts proved did not entitle plaintiff to that relief, she should be entitled to recover the value of services and board of defendant, and for labor performed and expenses incurred in pursuance of the verbal contract, less the value of the use of the premises. Stanton v. Miller, 14 Hun, 383, 79 N. Y. 620. Under the allegations contained in the complaint, however, unless amended, plaintiff will probably be unable to recover the greater part of such damages as she may actually have sustained. But, as above suggested, we think she was, under the pleadings and proofs, entitled to recover a small sum,-—-the value of services in making permanent improvements and of crops converted by defendant. Judgment reversed, and a new trial granted; costs to abide the event.  