
    Edward Burns, Respondent, v. Augustin Walsh, Appellant.
    (New York Common Pleas
    General Term,
    January, 1895.)
    An amendment to conform the pleading to the proof cannot he allowed upon the trial when the amendment changes substantially the claim or defense, and the proof is relevant to the original issue.
    A receipt in full, unexplained, is conclusive against any further claim for the period covered by it.
    In an action for services as engineer, the testimony showed that plaintiff was entitled to recover for but one month, but he claimed that he had paid the wages of an extra boy to assist him for several months. The defendant contested his liability therefor on the ground that, by the contract of employment, plaintiff was to pay for two boys. On the trial, the complaint was amended to conform to the proof, and plaintiff was allowed to recover for the amount paid to said boy. It also appeared that, during the period that such wages were paid by him, the plaintiff gave receipts in full upon receipt of his stipulated salary. Held, that the amendment was improperly granted, as it introduced a new cause of action, and that plaintiff was estopped by his receipts from making any further claim for the period covered by them.
    Appeal by the defendant from the affirmance, by the General Term of the City Court, of a judgment in favor of the plaintiff, entered upon a verdict of a jury for §145 damages, besides costs, in an action to recover for services as engineer, and in taking charge of defendant’s premises Hos. 3 and 5 East Eighty-fourth street, in the city of Hew York, at the alleged agreed price of eighty dollar’s per month for eight months from Hovember 1, 1891, for which a balance of $145 was claimed to be due, with interest from July 2, 1892.
    
      Michael J. Sccmlem, for appellant.
    
      Hector M. Hitching s, for respondent.
   Daly, Oh. J.

The plaintiff was permitted to recover eighty-one dollars for moneys expended in hiring a boy to assist him in his work at eighteen dollars pei month for four and one-half months, besides sixty-four dollars balance of wages for the month of June at the rate of eighty dollars per month. Ho claim for the eighty-one dollars, moneys expended, was set up in the complaint, and it was a different cause of action from that sued on. The recovery for that sum, therefore, should not have been allowed. His action was for wages at á stipulated sum of $100 per month, but in his testimony he explained his claim as follows: “I claim $80 for the month of June, and I claim repayment for the four months and a half that I paid this extra boy — and that, according to the testimony, at $18, makes $81; making in all $161. But all I ask is $145 to be on the safe side.” A motion was made at the close of plaintiff’s case to dismiss all of the plaintiff’s complaint except as to wages for the month of June, on the ground that the complaint contained no claim for moneys paid out, but was solely for services rendered; thereupon plaintiff’s counsel moved that the pleadings be made to conform to the proof, which motion was granted, under objection of defendant’s counsel that it introduced a new cause of action, and he duly excepted.

The amendment thus allowed was objectionable on the ground that it introduced a new cause of action, and should have been denied. Although testimony as to this claim was not objected to when received the plaintiff did not thereby acquiesce in the proof of a new cause of action, because the whole of the evidence was relevant to the issue whether the plaintiff was or was not employed at the rate of eighty dollars per month. An amendment to conform the pleading to the proof can never be allowed on the trial when the amendment changes substantially the claim or defense, and the proof is relevant to the original issue. Fortunato v. Mayor, 2 Misc. Rep. 406 ; 50 N. Y. St. Repr. 614 ; 21 N. Y. Supp. 963.

But the eighty-one dollars in question could not be recovered, even if properly pleaded, because the plaintiff is estopped by his own receipts. It appears that under his agreement with the defendant he was to receive $100 per month, and that this was punctually paid. The dispute on the trial was whether the plaintiff was to pay the wages of one boy or two boys to assist him, he claiming that he was to pay but one boy twenty dollars per month and to retain the balance, or eighty dollars, for Ms own services; the defendant claiming that he was to pay both boys, leaving but sixty dollars per month as his wages. The proof shows that for two months after he was originally employed, which was about November 1, 1891, he . paid forty dollars per month out of the $100 for two boys to assist him, and did not then, nor at the trial, make any claim for such payment, but that he gave a receipt in full for the $100 each month. He then "discharged one boy, but in February, 1892, was required by defendant to again employ two, and it is for the payment of the second boy, after that period, that he recovered on the trial, notwithstanding the fact that he still continued each month to give a receipt in full for all demands upon receiving the stipulated $100 per month.

The plaintiff’s admission in making no claim for the payment to the second boy in November and December, and receipting in full for those months, and the re-employment of the boy when required by defendant and receipting in full thereafter every month for the same sum, is of greater effect than simple corroboration of the defendant’s version of the agreement. It should have been regarded as conclusive upon that point, as plaintiff is estopped by his receipts, the defendant having the right to rely upon them and the plaintiff’s acts. Belgian Glass Co. v. Pabst, 101 N. Y. 621.

Even if the plaintiff was not estopped by his receipts, they were conclusive against any further claim for the period for which they were given, because they were wholly unexplained. “ While a receipt is not conclusive evidence of all the facts and statements contained therein, and is open to explanation and contradiction by the party giving it, yet it is always considered as y rima facie evidence of such facts, and, in the absence of a sufficient explanation showing its incorrectness, becomes conclusive evidence against the party giving it.” Riley v. Mayor, 96 N. Y. 331. In the case before us the plaintiff did not attempt to explain in any manner how he came to receipt in full- for all claims and demands each month during his whole employment by the defendant. His receipts were “ in full for any and all claims and demands for services rendered as engineer and agent, or otherwise, in and about premises Nos. 3 & 5 East 84th street.” His own evidence established the contract as set up in the defendant’s answer, viz., that his compensation was to be $100 per month, and not eighty dollars per month, as he claimed in his complaint, the only dispute being whether he was to pay one or two boys out of that sum. He gave no reason why he receipted in full, and the facts do not explain it, but, on the contrary, established the correctness of the receipts, since he makes no claim for the first two months of the employment, during which he paid for two assistants.

The- judgment should be reversed and a new trial ordered, with costs of the appeal and the former trial to appellant to abide the event of the action.

Bisohoff and Pbyob, JJ., concur.

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