
    Rose Heyman et al., Resp’ts, v. Sigmund A Schmidt, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    Evidence—Defense to contract proved but not pleaded.
    Where the plaintiffs are permitted to prove a different contract from that set up in the complaint, defendant is entitled to the benefit of any defense he may have to the contract proved, and plaintiffs cannot be heard to object to his proof of such defense on the ground that it is not pleaded.
    Appeal from a judgment of this court entered upon a verdict directed for the plaintiff.
    
      Joseph C. Rosenbaum, for app’lt; Richard M. Henry and Charles Meyers, for resp’ts.
   Daly, Ch. J.

It was alleged in the complaint that the plaintiffs employed the defendant to sell their goods upon a commission of ten per cent; that they had advanced him $847.86 in excess of commissions which he had earned, and that they were entitled to the return of that sum. The answer was a general denial. On the trial the plaintiffs proved a different contract, namely: an agreement by which the defendant was to receive five per cent commissions and eight dollars a day for traveling expenses, plaintiffs to pay him thirty dollars a week on account of commissions. The moneys which plaintiffs seek to recover back were paid under that agreement; and the defendant attempted to show that by a modification thereof the thirty dollars a week was to be paid to defendant in the nature of a salary. The plaintiffs objected to this evidence on the ground that it was not pleaded, and the proof was excluded.

The plaintiffs having been permitted to prove a different contract from that set up in their complaint, the defendant was entitled to the benefit of any other defense which he could make to the contract proved. The plaintiffs, having first disregarded the pleadings, could not invoke them to restrict the defendant. The answer of the latter was interposed to the cause of action pleaded, and not to that which was proved, and he ought not to be confined to pleadings which had no reference to the issue to be tried. “ IE the action was to be tried in disregard of the pleadings, defendant was entitled to the benefit of any defense which the evidence disclosed. It would be manifestly unjust to permit plaintiff to secure the benefit of a new cause of action not embraced m the pleadings and refuse to defendant the corresponding benefit- of a defense not thus disclosed.” Arnold v. Angell, 62 N. Y., 508.

J ndgment reversed and a new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.  