
    SPRINGER v. WESTCOTT.
    (Supreme Court, General Term, First Department.
    May 17, 1895.)
    Pleading and Proof—Variance.
    Where a ground of liability not suggested by the pleadings is submitted to the jury, and they render a general verdict for plaintiff, the judgment thereon cannot be sustained, unless the other ground of liability is so clearly established that a verdict might have been directed.
    Appeal from circuit court, New York county.
    Action by Hannah Springer against Robert E. Westcott, as president of the Westcott Express Company. From a judgment entered on a verdict in favor of plaintiff for $2,425.69, defendant appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    E. Luther Hamilton, for appellant.
    B. F. Einstein, for respondent.
   PARKER, J.

The court submitted to the jury a ground of liability not suggested by the pleadings, and it is the rule that, if in such case there be a general verdict, the judgment will not be upheld, unless the other ground of liability be so clearly established that, had a direction of a verdict been ordered, it would be sustained. Baldwin v. Burrows, 47 N. Y. 199.

The action was to recover for a breach of contract in failing to deliver a trunk and contents to the plaintiff. Plaintiff delivered a check which she had received from a railroad company for her trunk to the agent of the defendant, who caused the trunk, but not its contents, to be delivered to her. She alleged in her complaint “that on the 14th day of September, 1889, the plaintiff caused to be delivered to the said association, and the said association received, her trunk and its contents, at the Grand Central Depot in the city of New York,” but defendant omitted to convey the contents of the trunk to the place agreed upon. The defendant, on this trial, attempted to show by one of its expressmen that the trunk was delivered to the plaintiff in the same condition in which it was received by the defendant. When the court came to instruct the jury, however, it charged them, in effect, that, if they should reach the conclusion that the trunk was rifled while in the baggage room of the railroad company, the defendant could, nevertheless, be charged with liability for its neglect in failing to demand promptly the trunk from the railroad company, as will appear from a brief quotation from the charge:

“As I said before, the question is with reference to the diligence of the defendant’s servants as regards that subject Was that baggage lost because they did not get it in time, or get there in time.to claim it for the plaintiff, and to take possession of it, and deliver it at its appointed place of destination? It is for you to determine, under all the circumstances of the case, whether that is so or not. If you find that the defendant is responsible in that way for its negligence, and if the baggage was lost by fault of the defendant in the way indicated, then the plaintiff would be entitled to recover. If you find in favor of the plaintiff upon that issue, that the defendant or its servants did not do what they should have done, and did not get the baggage from the baggage room, and that the theft or loss was accomplished by reason of that negligence, then you will come to the consideration of another question.”

The other “question” referred to by the court in the concluding sentence involved the question of damages. It will be observed that the charge, in such respect, was inconsistent with the complaint, which not only did not contain an allegation of negligence in failing to demand the trunk promptly, but, on the other hand, positively alleged that, on the day mentioned, the trunk and its contents were delivered to the defendant at the Grand Central Depot.

The opening of counsel contains no suggestion that plaintiff intended a recovery upon any other ground than that mentioned in the complaint, nor was there anything done or said, so far as the record discloses, during the trial, prior to the charge of the court, to indicate that such a question was to be presented to the jury. Apparently, the form of the complaint was not brought to the attention of the court, and the jury were instructed as to the law as seemed to it proper under the facts proved. Exceptions, however, were properly taken by defendant’s counsel, and they are available to him for a reversal of the judgment, for the plaintiff’s evidence, in support of the ground of liability alleged in the complaint, was not of such a character as would have justified the court in directing a verdict in favor of the plaintiff upon that issue.

It may be said that the testimony warranted the instructions given to the jury by the court, and therefore this court should amend the complaint to conform to the facts proved. It would, doubtless, be proper to do so had the parties, in apparent disregard of the pleadings, tried the case as if the questions involved were such as the court presented to the jury. But the record shows that this case was not tried upon any such theory. Not only is it silent touching any claim of that character by plaintiff’s counsel, but it contains objections by defendant’s counsel which show that he not only understood the boundaries of the complaint, but intended to confine plaintiff within them. This will sufficiently appear by quoting from the record a question asked of the plaintiff, and defendant’s objection thereto.

“Q. Did you tell this Westeott’s expressman, or did he tell you, when this trunk would be delivered? (Objected to as irrelevant, and because declarations are not admissible to bind defendant, and because this action is not brought for delay in delivering or delay in demanding, but on the contract which is set forth in the complaint.)”

The fundamental rule that judgment shall be secundum allegata et probata (Day v. Town of New Lots, 107 N. Y. 148, 13 N. E. 915; Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698) having been violated, the judgment cannot be sustained.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.  