
    (86 Hun, 241.)
    PHILLIPS v. LEWIS.
    (Supreme Court, General Term, First Department.
    April 11, 1895.)
    Trial—Litigating Issues, not within Pleading.
    Where evidence not within the pleadings is admitted without objection from the adverse party, who does not claim to have been surprised thereby, and who introduced evidence to contradict it, it is error to refuse to submit to the jury the issues raised thereby.
    Appeal from circuit court, New York county.
    Action by Mary Phillips against Margaret Lewis to recover the sum of $650, with interest from May 1, 1888, for the alleged agreed price of board and lodging furnished by plaintiff to defendant. A verdict was rendered in favor of plaintiff for part of the amount claimed, and from the judgment entered thereon, and from an order denying a motion for a new trial, plaintiff appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    
      M. C. Milnor, for appellant.
    John P. Herren, for respondent.
   PER CURIAM.

This action was begun Aprjl 23,1894, to recover the agreed price for board and a room from September 15, 1887, until May 1, 1888. The plaintiff claims for 32£ 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 32 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 5 years, 11 months, and 22 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. A.t 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.  