
    Mary Phillips, App’lt, v. Margaret Lewis, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 11, 1895.)
    
    Teial—Issues not within pleadings.
    Where evidence, not within the pleadings, is admitted without objection or claim of surprise on the part of the adverse party, who introduces evidence to contradict it, it is error to refuse to submit the issues raised thereby.
    Appeal from ac judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      H. C. Milnor, for app’lt; John P. Herron, for resp’t.
   Per Curiam.

This action was begun April 23,1894, to recover the agreed price for board and a room from September 15, 1887, until May 1, 1888. The plaintiff claims for thirty-two and a half weeks, at the agreed price of $30 per week ($975), and admits a payment of $325, and demands a judgment for $650, with interest from May 1, 1888. The defendant asserts that she had a room and board for thirty-two weeks, between September 15, 1887, and May 1, 1888, at the agreed price of $15 per week, amounting to $470, which sum she alleges she has paid, and also alleges that the six-years statute of limitations is a bar to the action. The action was begun five years, eleven months, and twenty-two days after May 1, 1888, when it is agreed that the defendant left the plaintiff’s house. It is not alleged in the complaint or in the answer that the price agreed on, whatever it was ($30 or $15 per week), was payable weekly or at any particular time. On the trial the plaintiff testified—and in this she was corroborated by three witnesses —that the agreement was that the defendant was not to pay for her board until the time when she should sell certain Mexican land improvement bonds. The defendant denied that there was any such agreement. This evidence was admitted without objection on the part of the defendant that it was not within the pleadings. No objection was raised to its admissibility. At the close of the evidence, the plaintiff asked to go to the jury upon the question of fact raised by this testimony, which the court refused; and it was held, as a matter of law, that the plaintiff was only entitled to recover the agreed price for one week’s board. The plaintiff asked to amend the complaint so as to conform it to the facts proved. This motion was denied, and an exception taken. It was not asserted on the trial that the defendant was taken by surprise by the evidence offered in behalf of the plaintiff.

We think that the court erred in refusing to submit the question to the jury, and that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.  