
    Harry Abromovitz, Respondent, v. Ancel Markowitz and Samuel Abromovitz, Appellants.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Pleading — Variance between allegations in pleading and proof; What constitutes — Individual and joint liability; Failure of proof.
    A plaintiff can recover only on the cause of action alleged and proved; and, the plaintiff having failed to prove the cause of action set up in Ms complaint, and proper objections having been made on the trial and no amendment of the pleadings having been asked for, a judgment in his favor on a cause of action not alleged cannot be sustained.
    Where two defendants are sued upon a note as individuals, and only one is served with process, and the case is tried upon the theory that the answering defendant was individually liable on the note, and at the close of the plaintiff’s case he had proven a co-partnership liability only, and at the close of the entire case the partnersMp of the defendants was clearly established, the only judgment that could have been rendered for the plaintiff, if his version of the contested issues was to prevail, was one against both defendants.
    Where a joint liability is alleged and proved, the judgment, under section 1932 of the Code of Civil Procedure, must be taken against all the defendants although but one is served.
    Appeal by the defendant Markowitz, from a judgment of the City Court of the city of Hew York, entered in favor of the plaintiff upon the verdict of a jury, and also from an order denying defendant’s motion for a new trial.
    Max Schleimer, for appellant.
    Charles S. Rosenthal (Max D. Steuer, of counsel), for respondent.
   Gildersleeve, J.

The plaintiff brought this action against the two defendants above named, alleging in his complaint that he made his promissory note on October 15, 1906, for the sum of $250, for the accommodation of the defendants, payable to his own order; that said note was indorsed by the defendants and delivered to the plaintiff, for value received, before the maturity thereof; that at the maturity of said note the said note was duly presented for payment ; that payment was refused; that the note was duly protested'; that, by reason of the protest of said note, the plaintiff was obliged to pay the amount thereof; and plaintiff demanded judgment for the sum of $250 and interest and protest fees. The defendant Samuel Abromovitz was not served with process. At the opening’ of the trial, a motion was made by defendant to dismiss the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action. This motion was denied. The respondent concedes in his brief that the complaint does not set forth a joint liability on the part of the defendants, but that the defendants were sued as individuals and so charged in the complaint. The case went to trial; and the plaintiff, through its entirety, proceeded upon the theory that the defendant Ancel Markowitz, who alone appeared and defended and ■who appeals from the judgment rendered against him, was individually liable to the plaintiff on the note sued upon, evidently intending to relieve the codefendant, who is a brother of the plaintiff, from any liability thereon. There is no evidence in the case whatever to support this contention. The first statement of the plaintiff given under oath is that the defendant Ancel Markowitz “ was engaged in the dress goods business with my brother.” He further testifies that the appellant herein applied to him for a loan to assist the defendants in carrying on their business. The plaintiff then made a note payable to himself, which was indorsed by the firm name of Markowitz & Abromovitz. This note the plaintiff caused to be discounted and credited to his account in the bank. He then gave his own check payable to the firm of Markowitz & Abromovitz. Subsequently, the note not being paid, plaintiff claims that he was obliged to pay the same, and bases his claim for recovery in this action upon such payment. The testimony of the plaintiff shows that the entire transaction was with the copartnership, and that it was a copartnership liability sued upon, and that the appellant herein was in no way individually liable until the funds of the partnership property had been exhausted. The very statement of the plaintiff, given in evidence and urged upon this court as showing an individual liability on the part of the appellant, is clear proof, not of individual, but of the copartnership liability. In this portion of the testimony the plaintiff said: “ Here is the note Hosie made out, and you can get the money from the bank on the note; it has the firm name on it, and you get the money and give it to us.” At the close of the plaintiff’s case he had proven a copartnership liability only; and, at the close of the entire case, the partnership of the defendants was clearly established; and the only judgment that could have been rendered for the plaintiff was one against both defendants, if the plaintiff’s version of the contested issues was to prevail. The judge charged the jury that: “As to Samuel Abromovitz the action had abated,” and substantially charged that, if the plaintiff’s testimony was believed, the verdict must be against the defendant-appellant. The jury rendered a verdict in favor of the plaintiff, and a judgment was entered against the appellant alone. A motion was made to set aside the verdict upon the grounds set forth in section 999 of the Code of Civil Procedure, which was denied. It should have been granted. The judgment against the appellant alone has no foundation in law. A plaintiff can recover only secundum allegata et probata. Brightson v. Claflin & Co., 180 N. Y. 76, 81. The plaintiff having failed to prove the cause of action set, up in the complaint, and proper objections having been made on the trial, and no amendment of the pleadings having been asked for, the judgment in plaintiff’s favor on a cause of action not alleged cannot be sustained on appeal. Northam v. Dutchess County Mut. Ins. Co., 177 N. Y. 73; Korn v. Weir, 88 N. Y. Supp. 976. Even if we were to assume, against the strenuous claim of the plaintiff, that the complaint alleges a joint liability, then the judgment against the appellant alone cannot be sustained in its present form, as, where a joint liability is alleged and proven, the judgment must be taken against all the defendants, although but one is served. Code Civ. Pro., § 1932; Niles v. Battershall, 27 How. Pr. 381. The appellant herein has a right to have a judgment against his codefendant as well as himself, that resort may be had to partnership property first; and he cannot be made primarily liable for the copartnership debt.

Bisci-ioee and MacLeah, JJ., concur.

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