
    Marie Thill, Appellant, v. Charles H. Hoyt and Frank R. McKee, Respondents.
    
      Nonsuit —proof, under a claim of a breach of a contract of employment, of an agreement merely to gire the plaintiff a trial.
    
    Where the complaint in an action alleges the breach of a contract by which the defendant agreed to employ the plaintiff “for the theatrical season of 1895-1896, consisting of about forty weeks,” and it appears upon the trial that the defendant only agreed to give the plaintiff a trial and if she performed the part assigned to her satisfactorily to employ her, but not for any definite time, the plaintiff, having made no request to amend her complaint or to conform it to the proof, should be nonsuited and is not entitled to complain if the court directs a verdict in her favor for nominal damages.
    Appeal by the plaintiff, Marie Thill, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the comity of Hew York on the 25th day of October, 1898, denying the plaintiff’s motion for a new trial made upon the minutes, the court having previously directed a verdict in her favor for nominal damages.
    
      Robert L. Turk, for the appellant.
    
      A. H. Hummel, for the respondents.
   McLaughlin, J. :

This action was brought to recover damages for an alleged breach of a contract of employment. The answer was a general denial. At the close of the trial the court directed a verdict in favor of the plaintiff for nominal damages, and the principal question presented arises on plaintiff’s exception to the refusal to grant a new trial. After a careful consideration of the record before us, we are of the-opinion that the exception was not well taken.

The complaint alleged that on or about the 17th day of July, 1895, at the city of Hew York, the defendants entered into an agreement, by the terms of which they agreed to employ the plaintiff for the. theatrical season of 1895-1896, consisting of about forty weeks, at a weekly salary of thirty dollars. To establish the contract thus alleged, the plaintiff, upon the trial, testified that, on the 19th of July, 1895, she received a letter which read as follows:

“ Hoyt’s Theatre, Hew York, 1 “ Hoyt & McKee, Proprietors. )
Miss Marie Thill :
Dear Madam.— Your letters and photos received. I told Mr.. Dickson that I would not fill the part without giving you a trial. The dresses required will be three in number ■—- act 1st, pretty street dress; 2d and 3d acts, house dresses, demi-morning. We shall probably call rehearsals about the 20tli of August. I understand from Mr. Dickson that the salary was to be $30 a week, which is-satisfactory, if you play the part all right.
“ Yours truly,
“ CHAS. HOYT.”

To this she replied that she was satisfied with the “ part,” and. that she would be in Hew York for rehearsals when notified. She also testified that the first conversation she had with the defendants, relating to the subject-matter of her employment, was on the-8tli of August, 1895, when she saw the defendant Hoyt, and was informed by him that Mr. Goodwin had full charge of her part that she then saw Mr. Goodwin, who informed her that there seemed to be some misunderstanding about the part she was to have, and that he then went to Mr. Hoyt’s office and, after remaining there a few minutes, came back and said, “It is all right, the part is. yours.” She further testified that the manuscript of the part she-was to play had been forwarded to her prior to the interview just referred to with a letter signed by Mr. Goodwin, and that on August twenty-seventh she went to the defendants’ theatre and had a conversation with Mr. Mitchell, the stage manager, in which he told her that he had been directed by the defendants to say to her that Mr. McKee, while away, had engaged some one else for the same-part that Mr. Hoyt had engaged her for, and that she “ had better see Mr. Goodwin; that she thereupon saw Mr. Goodwin, who said he had been directed by the defendants to give her a check for thirty dollars, which she refused; that she again saw Mr. Mitchell,, and he said there was nothing he could do for her ; that she attended a rehearsal either that night' or the next, and Mr. Mitchell then informed her that the defendants could not give her the part she-had been engaged for, but that they would give her a minor part,, for which they were paying eighteen dollars per week, but they would pay her thirty dollars the same as they had agreed to pay for the other part. This she refused to accept and instituted this action to recover for forty weeks’ services at thirty dollars per week, and two hundred dollars for three gowns which she had purchased in anticipation of performing the part referred to.

The foregoing is substantially the plaintiff’s evidence as to the-making of the contract alleged, except that she testified in answer to a question propounded by the court that nothing was said or written to her concerning the duration of her employment. The most favorable view that can be taken of the evidence is that the defendants agreed to give her a tidal, and if she performed her part satisfactorily to employ her, not for the theatrical season of 1895— 1896, for forty weeks, or any other definite time. There was,, therefore, a failure to prove the cause of action alleged, and for that reason the" defendants’ motion for nonsuit should have been granted-

The Code of Civil Procedure (§ 481) requires that the complaint must contain a plain and concise statement of the facts constituting the plaintiff’s cause of action, the object of which is to notify the defendant in advance of the issues to be tried in order that he may properly prepare his defense. The Code also requires that pleadings must be liberally construed with a view of substantial justice between the parties, and to that end power is conferred (§ 723) upon the court to permit an amendment at any stage of the action; and, where the amendment does not change substantially the claim or defense, to conform the pleadings to the proof. Here, as we have seen, the plaintiff failed to prove the cause of action alleged in her complaint, and no request was made to amend her complaint or to conform it to the proof. In Southwick v. First Nat. Bank of Memphis (84 N. Y. 420) it is said that where the plaintiff has failed to prove the cause of action he has alleged, and the defendant takes proper ■objection thereto, and an amendment of the complaint is neither asked for nor ordered, a judgment in plaintiff’s favor upon another ■cause of action, not alleged, cannot be sustained on appeal. The question of the sufficiency of this complaint to entitle the plaintiff to recover under the proof offered was raised by defendants’ motion to dismiss it at the close of the testimony, yet as we have seen no amendment was either asked for or granted. The plaintiff ■did not even except to the direction of a verdict in her favor for nominal damages, or request that any question of fact be submitted to the jury.

The plaintiff should have been nonsuited, and as the judgment obtained was a more favorable one than she was entitled to, she is not in a position to complain.

It, therefore, follows that the order appealed from must be affirmed, with costs to the respondent.

Van Brunt, P. J., Barrett, Bumsey and Ingraham, JJ., concurred.

Order affirmed, with costs.  