
    LYNCH v. OGREN.
    (Supreme Court, Appellate Term.
    May 7, 1909.)
    Judgment (§ 253)—Conformity to Pleadings.
    A judgment for 6 Cents in an action on an express contract to pay $50 for certain attorney’s services was unsustainable for failure to conform to the pleadings.
    [Ed. Note.—Eor other cases, see Judgment, Cent. Dig. § 443; Dec. Dig. § 253.*]
    Appeal from Municipal Court, Borough of Manhattan, Seventh District'.
    Action by Humphrey J. Lynch against Charles A. Ogren. From a Municipal Court judgment for less than the relief demanded, plaintiff appeals.
    Reversed.
    Argued before GILDERSLEEVE, P. J./and DAYTON and GOFF, JJ.
    Humphrey J. Lynch, in pro. per.
    Louis W. Severy, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

This was an action on an alleged contract between the parties, who are attorneys. They represented adverse parties in the settlement of an estate, and plaintiff contends that he was promised .$50 by defendant to procure the filing of an accounting and entry of a decree which should contain certain provisions in defendant’s favor. This defendant flatly denies, and urges, further, that such a contract would be unconscionable and impossible of performance. The court awarded 6 cents damages to the plaintiff.

Such a judgment' can only be on the theory of quantum meruit, and not of contract, upon which this action was brought. No amendment was asked, or even desired, by either party. The issues were squarely presented on the theory of contract, and none other were advanced. The judgment should have either found a contract', whether valid of voidable, or it should have found that there was no contract. This court does not attempt to pass upon the conflicting evidence; but the judgment was not such as could properly be rendered on the pleadings at bar. If possible, technicalities should always yield to substantial justice, and although the trial justice may have felt that such a result was accomplished by his decision, and rightly so, yet for the reasons stated the judgment must be reversed, and a new trial ordered, without costs of this appeal.

Judgment reversed, and new trial ordered, without costs of this appeal.  