
    Theodore McKane, Appellant, v. S. Stryker Williamson and Others, Respondents, Impleaded with John Y. McKane and Others, Defendants.
    Second Department,
    October 4, 1907.
    Building contract — evidence of damages.
    When, under a complaint alleging an agreement by the plaintiff to furnish labor and materials to erect buildings according to the defendant’s plans and that pursuant thereto he furnished'brick and other material and labor, etc., and completed the building pursuant to the agreement at the agreed price of a stated number of dollars, the plaintiff has proved that, he was to be paid in addition to the cost of labor and materials a certain sum per day for each man employed and a certain -sum for brick and other material used, etc., it is error to exclude evidence showing the number of men employed on the work, the number of days éach worked and the amount of materials used.
    The evidence should not be rejected on the theory that it would permit a recovery ' for a cause of action different froto that alleged.
    Appeal by the plaintiff, Theodore McKane, from a judgment of the Supreme Court in favor ’of 'certain of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of June, 1906, upon the dismissal of the complaint, as to such,defendants, by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.
    
      Frederick W. Sparks [Leonard J. Reynolds with him on the brief], for the appellant.
    
      Jerry A. Wernberg, for the respondents.
   Rich, J.:

The question to be determined involves a consideration of the 2d and 3d subdivisions of the complaint, which are as - follows: “II. That, on or about the first day of April, 1892, these defendants entered into a contract or agreement with this plaintiff toi him to furnish materials and -labor as a mason builder and to erect said buildings pursuant to plans by them provided and -to pay' him for the said materials and labor as the work progressed. -III. That this plaintiff entered into the performance of his duties as such contractor and builder and between the said first day of April, 1892, and the first day of September, 1892, he furnished material: consisting of brick, lime, cement, sand ánd other building material, and furnished labor and completed said buildings and appurtenances thereto pursuant to his agreement, at the.agreed price and value of Twenty-one thousand and sixty-one 85^100 ($21,061.85) dollars.”

■ Upon the trial the plaintiff proved amoral contract made with the defendant McKane in the presence bf the defendant Williamson (it being alleged that the defendants'were copartners in the construction of the buildings, to recover for the erection of which this, action was brought), in substance that- plaintiff was tó furnish .the labor and materials for the construction of the buildings and be paid therefor -— in addition to their cost to him — fifty cents a day for each man employed on the work; fifty cents a thousand for brick used; fifteen cents a barrel for Itosendale-and ten cents a barrel for Portland cement Used, the aggregate of which amounts represented-his profits. '• After making,¡this proof he attempted to show- the number of men engaged in the work and the number of days each worked, and the number of brick and barrels of cement used, as the basis for his recovery. This evidence was objected tó" as immaterial and irrelevant; the objections were sustained and exceptions to the rulings', duly taken. He then .asked to amend- his. complaint in such manner as. to permit the admission .of this • evidence; 'this was denied, the trial court holding that such amendment would permit recovery for-a" cause of action different from the one alleged; -

I .think the evidence was admissible" under the allegations of the complaint... The fact that in order to establish the amount that the. plaintiff was entitled to recover under ..his contract it became necessary to prove the various items upon which his compensation .was based, did not constitute a cause of action different from that alleged in- the words “ he. furnished material consisting of' brick, lime, ■ cement; sand and other building "material, and-, furnished labor and.completed said buildings and appurtenances thereto pur-, suant "to his agreement, at the agreed price and value of ” .$21,061.85. The only variance of the proof offered and excluded from the alle^ gations of the complaint would be the- possibility that" the aggregate would not be the same, which would be an. immaterial variance." The contract had - been proven, with the exception of the amount' which under its provisions", the" plaintiff was entitled, to recover, The essential ■ elements of furnishing the labor and materials required and completing the buildings in accordance with, the plans furnished Mm by the defendants, having been established, the aggregate amount of his recovery, . although based upon fifty cents a day for each man employed, fifty cents a thousand for- brick used and fifteen and ten cents per barrel respectively for cement used, Was yet within the allegation of his pleading, for the aggregate constituted the agreed price and value.” The theory upon which the action was triód, viz., that the defendants had plans for the constrtiction of the buildings which the plaintiff agreed to and did follow and comply with; that-he-furnished the necessary labor and materials and fully performed his contract', thereby becoming entitled to recover, as the amount agreed to be paid him, sums amounting in the aggregate to the sum alleged, was within the averments of the complaint, and the exclusion of this evidence presents reversible error. ' ■

The j udgment should be reversed and a new trial granted, costs to abide the evpnt.. '

Hirschberg, P. J., Hooker, Gaynor and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event. ■  