
    Henry Epstein and Philip Freedman, Respondents, v. Isaac Cohen, Max Levine and Hymen Rich, Appelants.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Pleading: Amendments — Amendments by leave of court—Amendment to conform to proof — After verdict: Variance between allegations in pleadings and proof — Failure of proof.
    Where a cause is tried and submitted to the jury upon a theory not sanctioned by the pleadings, the variance is fatal and calls for a reversal of a judgment in plaintiffs’ favor where defendants preserved their rights by proper motions and exceptions.
    
      Where the complaint alleges that on a certain day the plaintiffs, at the request of defendants, gave into their care a horse which they promised and agreed, but neglected and refused, to return in the evening of the same day, and on the trial it appears that the horse died during the period of hiring, the plaintiffs having failed to prove the cause of action set up in their complaint, and proper objections having been made on the trial to the reception of evidence of defendants’ contract to save plaintiffs harmless if anything happened to the horse, which was not pleaded, and no amendment of the pleading having been aske'd for, the judgment in plaintiffs’ favor cannot be sustained nor after the trial can the pleadings be conformed to the proof.
    Appeal by the defendants from a judgment in favor of the plaintiffs, entered in the City Court of the city of New York..
    Thomas J. O’Neill, for appellants.
    Nathan Tolk, for respondents.
   Leventritt, J.

This case was tried and submitted to the jury on a theory not sanctioned by the pleadings. As the defendants preserved their rights by proper motions and exceptions, the variance is fatal and chills for a reversal.

The complaint alleges “ that on or about the 14th day of September, 1900, the plaintiffs * * * at the request of the defendants * * * > gave into the care and custody of these defendants a certain mare, which these defendants promised and agreed to return in the evening of the said date * * *; that the defendants have not returned * * ■* the said mare, although the plaintiffs demanded same from them * * * and failed, neglected and refused to return the said mare.” The answer, in addition to a general denial, ’sets up as a separate defense that the defendants hired the horse from the plaintiffs and that it died during the period of hiring without any negligence on their part.

Philip Freedman, one of the plaintiffs, testified as to the occurrences on the day of hiring: “ At the time Mr. Eich got the horse I said to him, I cannot give you that horse because it is a buggy horse ’ and he did trucking business and he could not stand hard work; he said, I will take it; ’ he said, My firm will stand good for the horse in case anything happens to the horse.’ ”

Defendants moved to strike out the answer as incompetent under the pleadings and as setting out a guaranty. Flainiiffs’ counsel stated: “ I waive the tort and sue on the contract,” whereupon the defendants renewed the motion to strike out bn the ground that the contract testified to was not pleaded.- The exception taken to the denial of the motion raises the question on appeal. The plaintiffs rested squarely on the alleged contract to save them harmless. Similar testimony to that cited was given elsewhere in the record; and the court in submitting the case to the jury specifically charged that, if the jury believed the evidence of the plaintiff that the defendants made an express promise to stand good for the horse, and used it other than as a buggy horse, liability would attach to the defendants.

The pleading sets forth an ordinary contract of bailment. If there was any waiver of a tort and an election to sue in contract, that election was made by the complaint itself. That a plaintiff can recover only secundum allegata et probata is still a fundamental rule. Brighton v. Claflin Co., 180 N. Y. 16, 81; Southwick v. First National Bank of Memphis, 84 id. 420; Absalon v. Sickinger, 102 App. Div. 383.

“ If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.” Brightson v. Claflin Co. supra. The defendants tendered a distinct issue as to the contract of bailment; they claimed to be relieved of liability under thait special contract by setting up the death of the horse without any fault on their part. On the trial the plaintiffs seek to charge them with a different and more onerous special contract wherein the liability assumed approximates that of insurer.

The plaintiffs having failed to prove the cause of action set up in the complaint, and proper objections having been made on the trial, and no amendment of the pleading having been asked for, the judgment in plaintiffs’ favor on a cause of action not alleged cannot be sustained on appeal; nor, after trial, can the pleadings be conformed to the proof. Northam v. Dutchess Co. Mut. Ins. Co., 177 N. Y. 73; Korn v. Weir, 88 N. Y. Supp. 976.

Gildebsleeve and Erlangeb, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  