
    Fillmore Riker, Resp’t, v. James L. Curtis, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 5, 1894.)
    
    1. Limitation—Summons left with sheriff.
    Proof that the summons was lodged with the sheriff, within six years, for service upon the defendant, without further proof that the defendant was at the time a resident of the same county, does not operate to prevent the effect of the statute.
    2. Pleadings—Amendment—Complaint.
    The appellate court can direct an amendment of the pleadings only in the cases where the amendment could have been directed by the trial court.
    3. Same—Secundum allegata et probata.
    The rule of secundum allegata et probata obtains in all cases where substituted issues were not litigated on the trial.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for the plaintiff entered upon a verdict directed by the court.
    Action to recover moneys loaned and to be repaid; the defenses being a general denial, that the cause of action did not accrue within six years preceding the commencement of the'action, and that the moneys alleged to have been loaned were in fact paid upon the purchase of a demand in favor of the defendant against a third person.
    
      E. A. S. Man, for app’lt; Edgar A. Turrell, for resp’t.
   Bischoff, J.

The complaint declared upon .two causes of action for money loaned, the defenses interposed being a general denial, that the several causes of action did not accrue within the six years immediately preceding the commencement of the action, and that the moneys alleged to have been loaned were in fact paid upon' the purchase of a demand existing in favor of the defendant against a third person.

Regarding the action as having proceeded upon the causes of action alleged, it was clearly error for the trial court to deny the defendant’s motion, made when the evidence was finally submitted, for the direction of a verdict in his favor. It was then unchallenged that the summons was not served upon the defendant until some time after the expiration of six years immediately succeeding the accrument of thé several causes of action, and there was no evidence whatever from which it could be made to appear, even inferentially, that the defendant was not at all times a resident of the state, or that the bar of the statute of limitations was removed by a new promise of part payment. The defense of the statute had, therefore, prevailed and a judgment for the defendant was inevitable. Proof that the summons was lodged with the sheriff within the six years, for service upon the defendant, without further proof that the defendant was at the time a resident of the same county, did not operate to prevent the effect of the statute. Code Civ. Pro. § 399. Furthermore, it was conclusive from the unchallenged testimony of an unímpeached and disinterested witness that the defendant then was a resident of a county other than the one with the sheriff of which the summons was lodged for service. '

Deeming the evidence adduced on the trial sufficient to show either that the moneys sought to be recovered in this action were paid by the plaintiff to the defendant under a mutual mistake, or that the moneys were obtained by the defendant from the plaintiff by fraud, and .intending to re.voke the aid of a ruling that under such circumstances the statute of limitations was not set in motion until a demand for the return of the moneys upon discovery of the mistake or fraud, the general term below directed an amendment of the complaint to conform to the proof, and so affirmed the judgment.

That such an amendment was unauthorized is obvious. . No amendment of the complaint was asked for on the trial, and indeed, the trial court could riot have granted it since its effect would have been to substitute new and entirely different causes of action for those pleaded. Freeman v. Grant, 56 Hun, 640; 30 St. Rep. 621; Gas Light Co. v. R., W. & O. R. R. Co., 51 Hun, 119; 24 St. Rep. 154; Hill v. London As. Cor., 34 id. 65; Fisher v. Rankin, 55 Hun, 606; 27 St. Rep. 582; Nat. S. Co. v. Sheahan, 122 N. Y. 461; 34 St. Rep. 35; Cumber v. Schoenfeld, 16 Daly, 454. The authority of the appellate court to direct an amendment of the pleadings obtains only in the cases where the amend1 ment could have been directed by the trial court. Reeder et al. v. Sayre, 70 N. Y. 180; Harris v. Tumbridge, 83 id. 92. True, issues other thán those created by the pleadings may be litigated by consent of the parties, and where that has been done it is the province of the trial court to direct' an amendment of the pleadings to conform to the proof." If the amendment is omitted on the trial the appellate court, in the case stated, may either direct it or deem the pleadings to be amended. Fallon v. Lawlor, 102 N. Y. 228; Frear v. Sweet et al., 118 id. 454; 29 St. Rep. 972. In the absence of expressed consent to the litigation of other issues such consent may be inferred from the evidence offered upon the one side, and the absence of objections, or the character of the objections, upon the other. Frear v. Sweet et al., supra. No such consent, however, is inferable in the case under review, since the record fails to disclose the admission of any evidence whatsoever which was not relevant and competent to the issues created by the pleadings.

The rule requiring the recovery to be secundum allegata et probata obtained in all cases where it does not appear that substituted issues were litigated on the trial, Romeyn v. Sickles, 108 N. Y. 650; 1 Silv. Court of App. 594; 13 St. Rep. 864, and though the evidence may justify a recovery upon a cause of action other than 'the one alleged the appellate court is without authority to award it. It is the exclusive province of the trial court to determine the facts in the first instance. Riley v. Black, 1 Misc. Rep. 288, 292; 48 St. Rep. 759, and cases cited.

The judgments of the general and trial terms below should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  