
    OLIVER FREDERICK CORBETT ET AL., PLAINTIFFS-RESPONDENTS, v. CHRISTOPHER J. CARLEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued July 19, 1949
    Decided August 8, 1949.
    
      Before Judges McGeehan, Proctor and Haneman.
    
      Mr. George H. Rosenstein (Mr. Thomas A. O’Callaghan, on the brief; Messrs. Parnell & Kreuger, attorneys) argued the cause for the defendant-appellant.
    
      Mr. Paul Lustbader argued the cause for the plaintiffs-respondents.
   Per Curiam.

The facts, in brief, as set forth in the complaint, are as follows:

Plaintiff was a minor on April 1, 1945, at which time he advanced moneys for the purchase of a parcel of-real estate in the City of Newark by his mother and step-father. Title was taken by them as tenants by the entirety.

The complaint sets forth two causes of action. It alleges (1) that there was an express oral agreement to convey to him a three-quarter interest in the realty when he reached his majority; and (2) a demand for partition of said realty.

After hearing, the second cause of action was dismissed. A judgment was entered, the gist of which was that the plaintiff was entitled to an equitable lien on the premises to the extent of moneys found to have been advanced by him.

The complaint was not amended, either during the trial or at the conclusion of the trial, to conform to the proofs. It is evident, therefore, that the judgment is founded upon a theory not appearing as an issue in the pleadings. It is as well apparent that the defendant might have adduced additional and different testimony or have interrogated the plaintiff and his witnesses on other subjects than he did had he been apprised that the plaintiff was seeking to impress a lien upon the premises rather than seeking an interest in the fee simple title.

The judgment is, therefore, reversed, and the case remanded to the court below so that the plaintiff may amend his complaint seeking the relief granted. The defendant may file whatever answering pleading he may deem necessary, and a further trial on such newly framed issue be had.  