
    Lewis L. Evans, Respondent, v. Ascher Detective Agency and New York Harbor Patrol, Inc., Appellant.
    (Supreme Court, Appellate Term, First Department,
    November, 1914.)
    Pleading — contents of complaint — admission by answer of rendition of services — failure to deny reasonable value of services — contracts — dismissal of complaint on the merits — evidence.
    A complaint as a first cause of action sought to recover a balance due for services rendered under a contract set forth. A second cause of action pleaded the rendition of the services at defendant’s request and sought a recovery for their reasonable value. The answer admitted the rendition of the services but denied the allegation as to reasonable value. By leave of the court, plaintiff discontinued as to the first cause of action and secured the direction of a verdict on the second cause of action on the ground that there was no denial thereof, and defendant, claiming that his failure to deny the reasonable value of the services was a clerical oversight, asked to withdraw a juror and be permitted to move for leave to amend, but his motion was denied. Held, that the direction of a verdict in favor of plaintiff for the value rather than for the contract price for the services rendered was error.
    A third cause of action for the return of a specific amount alleged to have been advanced by plaintiff to defendant under the terms of the contract should not have been dismissed upon the merits, the proof showing that plaintiff had advanced only one-half of the amount alleged.
    Appeal by defendant from a judgment of the City Court of the city of New York in favor of plaintiff upon his second cause of action, entered upon a directed verdict, and dismissing plaintiff’s third cause of action for failure of proof.
    Brussel & Beebe (E. Walter Beebe, of counsel), for appellant.
    
      Olcott, Schwarzchild & Schramm (Merrill Bishop, on the brief), for respondent.
   Bijur, J.

The chief point involved in this controversy is the exclusion by the learned trial judge' of evidence offered by the defendant of a contract between itself and the plaintiff. The complaint for a first cause of action sets out this contract and the rendition of services thereunder, with a claim for the balance due in accordance therewith.

For a second cause of action, and in the eighth paragraph of the complaint, the plaintiff pleaded the rendition of services at defendant’s request; and in the ninth paragraph the reasonable value of said services.

The answer, without referring to the two “ separate defenses of action,” admitted so much of the eighth paragraph as alleged the rendition of services by the plaintiff, but failed to deny the ninth paragraph, which alleged their reasonable value.

At the trial plaintiff moved, and was allowed, to discontinue as to the first cause of action, and secured the direction of a verdict on the second cause on the ground that it was not denied. Defendant urged that the failure to deny the reasonable value of the services was a clerical oversight, and asked to withdraw a juror and to be allowed to apply at Special Term for leave to amend, which was denied.

Defendant then sought to introduce in evidence the contract in diminution of plaintiff’s claim for the value of his services. Plaintiff’s counsel admits on this appeal that under ordinary circumstances and in conformity with the law as laid down in Rubin v. Cohen, 129 App. Div. 395, such proof would have been competent and material, but claims that the value of the services having been admitted by failure to deny proof of the contract became immaterial. This contention, however, disregards the defendant’s express pleadings. Although the answer admits so much of the allegations contained in paragraph eighth as alleges the rendition of services to the defendant, and fails to deny the- ninth paragraph, namely, the value of such services, it, nevertheless, continues as follows: This defendant alleges that the said services so rendered by the plaintiff to the defendant were rendered under and pursuant to -the agreement set forth in the second paragraph of the complaint.” In other words, defendant, admitting the value of plaintiff’s services, alleges that, so far as its obligation is concerned, it is to pay, not the value, but the contract price.

The direction of a verdict in favor of plaintiff for the value rather than for the contract price of his services was, therefore, error.

As the pleadings stood at the trial, the dismissal of the third cause of action should not have been upon the merits. The cause of action is for the return of $1,000 alleged to have been advanced by plaintiff to defendant under the terms of the contract. Plaintiff’s proof, however, showed that he had advanced only $500.

Since there must be a new trial of this case, it will probably accord with the spirit of the decision in Muller v. City of Philadelphia, 113 App. Div. 92, 96, to allow all the parties to apply for leave to put their pleadings in such shape as to present adequately the issues which they desire to have tried.

The judgment is reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Cohalan, JJ., concur.

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