
    The Carey Printing Company, Appellant, v. Toilettes Fashion Company, Respondent.
    First Department,
    December 30, 1909.
    Trial — proof of facts not alleged — waiver by failure to object.
    Although a complaint merely alleges that the defendant refused to allow the plaintiff to furnish work and material as agreed without stating that the plaintiff did a portion of the work and delivered it to the defendant, the latter by permitting such proof without objection cannot afterwards exclude' evidence showing failure to pay therefor.
    Unless a defendant- makes timely objection that proof offered is not within the allegations of the complaint, he waives his right to object to a recovery because of a failure to allege the facts proved.
    Appeal by the plaintiff, The Carey Printing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of May, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term.
    
      Kellogg <& Bose, for the appellant.
    
      Henry A. Powell, for the respondent.
   Houghton, J.:

The defendant entered into a contract with the plaintiff for the printing of certain monthly editions, for one year, of a magazine known as “Junior Toilettes”, at a stipulated price per 1,00.0. Plaintiff claims that the contract was broken and brought action therefor.

The complaint states a cause of action for breach of contract only and does not plead that the plaintiff performed any specific work for which it was entitled to compensation in addition to its damages for the failure of the .defendant to permit it to complete its contract. On the trial, however, without objection on the part of the defendant, the plaintiff was permitted to prove1 that it did in fact print and deliver to the defendant the editions of February, March and April amounting to 35,000 or 40,000 copies in each month. In addition to the permitting of plaintiff to- make this proof without objection, the defendant expressly conceded that the ■ •edition for the month of February was printed by the plaintiff and delivered to the defendant. When, however, the plaintiff sought to prove that payment for these months had not been made the defendant objected that the proof was not within the pleading, and. the learned trial, court sustained the objection. No further. proof with respect to the general breach of the contract was offered and the plaintiff’s complaint was dismissed.

We are of the opinion that the defendant having permitted the plaintiff to introduce without objection the substantive proof with . respect to the performance of a part of its contract and that it had earned something thereunder, was not in position to object to the completion of that proof by showing non-payment on the ground that the complaint did not allege the performance of any work and non-payment .therefor. Unless a defendant upon the trial makes timely objection that the proof offered is not within the issue, be waives his right to say that the plaintiff should not recover because he has not properly plead. Having entered upon the trial if the parties see fit they can frame their issues as they like irrespective of the pleadings. If they make no timely objection that the proof offered is not within the issues of the pleadings they are deemed to frame them differently and according to the proof. In our view such was the situation in the present case. At least as to the month of February, according to the concession of the defendant, the plaintifE had printed the edition of the magazine and delivered it to the defendant and presumptively it was entitled to some compensation therefor.

It was, therefore, error to dismiss the complaint, and the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, Clarke and Scott, Jj., concurred; McLaughlin, J., concurred in result.

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