
    Arthur A. Hodges, Appellant, v. Leopold Friedheim, Respondent, Impleaded with Gerson Stein and The Harlem Casino Company.
    
      Contract for work with a party who Subsequently becomes a pa/rtner of a third person — liability of the third person for the cost of the wm'h — amendment of a complaint on appeal to conform to a new view of the ease.
    
    The fact that, after the sole lessee of premises has entered into a contract for the decoration of a building thereon, he forms a partnership with a third person in the use of the premises, and that the work under the contract proceeds with the knowledge and consent of the latter and with that of the firm, does not render the third person, or the firm of which he is a member, liable upon the ■ contract.
    Where a judgment is correctly rendered secundum allegata et probata, the court will not on appeal amend the nomplaint to fit it to a view of the facts proved, which was not presented by it as originally drawn, in order to reverse a judgment of the trial court properly dismissing it in the form - in which it was before that court.
    Appeal by the plaintiff, Arthur A. Hodges, from so much óf a judgment of the Supreme 'Court, entered in the office -of the clerk of the county of Hew York on the 21st day of June, 1897, upon the decision of the court rendered after a trial at the Hew York f . Special Term, as dismisses the complaint as against the said Leopold Friedheim.
    
      Henry Tompkins, for the appellant.
    
      David Salomon, for the respondent.'
   Barrett, J. :

This action, as originally brought, was for the- foreclosure of a mechanic’s lien upon a leasehold interest in certain real property described, in the complaint.

The plaintiff is the assignee of one Rafalsky, who entered into a written agreement with the defendant Stein for the interior decoration of a restaurant in the building erected upon the land in question.

. At the time when the agreement was made Stein was sole lessee of the premises. ' He subsequently entered into a partnership with the defendant Friedheim, for the purpose of conducting the restanrant, and thereupon lie assigned to Friedheim a half interest in the lease.. -At. the commencement of the trial the 'plaintiff abandoned his attempt to foreclose and waived his mechanic’s lien. He thereupon asked for personal judgment against both Stein and Friedheim. He also moved to amend his complaint by demanding this personal judgment, and his motion was granted.

The trial then proceeded and it resulted in a judgment against Stein but in favor of Friedheim. -From the' latter judgment the ■plaintiff appeals. . •

He contends that Friedheim’s liability was clearly established b'y the evidence adduced upon the trial. But the difficulty is that no cause of action is alleged as against this particular defendant. The only allegation made against him is that, after he became Stein’s partner and the owner of a half interest in the lease, the decoration of the restaurant, pursuant to the contract with Stein, proceeded with his knowledge and consent, and with the knowledge and consent of the firm. We must assume that the, proofs were given solely in support of this averment. Conceding that these proofs sustained the allegation, still the judgment of dismissal was right, for clearly neither Friedheim nor the firm of Stein & Friedheim. could be held merely because the work was done with his or their knowledge and consent under a contract with Stein.

We cannot, upon this appeal, amend the complaint in essential. particulars for the purpose of fitting it to the facts which the plaintiff deems to have been established. Indeed, were it proper in any case to amend a complaint, on appeal, in a vital particular, for the purpose of reversing a judgment, it would be difficult accurately to conform this complaint to the proofs adduced upon the trial. These proofs might well be adapted to a variety’ of allegations. It is impossible, for instance, to say whether, in addition to the written contract with Stein, the plaintiff sought to establish a parol contract with Friedheim or with the firm, or whether he aimed at a novation or an assumption by the firm of Stein’s obligation. ■ He should have definitely taken his' position on these heads, and his complaint should have been formulated accordingly. His evidence ivould then have been adapted to his allegations, and the court would have been in a position to determine whether the particular obligation of Friedheim, upon which he rested his case as against that defendant, had been made out. We cannot, upon this appeal, grope through the case and adapt the evidence to whatever obligation on Friedheim’s part it may possibly support. In other words, we cannot conform the complaint to one of several views of the evidence for the purpose of reversing a judgment which, secundum allegata et probata, was entirely correct.

The' judgment should be affirmed, with costs,

Yan Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with costs. .  