
    Kaufman v. Bloch.
    (New York Common Pleas—General Term,
    November, 1893.)
    Although a recovery must be secundum allegata et probata, it is competent for the parties on the trial to consent to the litigation of a cause of action other than the one pleaded; consent may be inferred from the fact that evidence of the substituted cause of action was received without -objection.
    In an action to recover on defendant’s promise to divide his commissions, with plaintiff on the sale of real estate, evidence as to whether the vendor requested defendant to pay part of the commissions to plaintiff was excluded, Held, no error.
    Whether or not the agreement to divide the commissions was made was a question of fact, and the determination of the trial justice upon conflicting testimony should not be disturbed.
    
      Appeal from a judgment for plaintiff recovered in the District Court in the city of Hew York for the fourth judicial district.
    Action to recover for moneys alleged to have been had and received to plaintiff’s use.
    
      Charles Goldzier, for plaintiff (respondent).
    
      Samuel Muller, for defendant (appellant).
   Bischoff, J.

The complaint was in form for money had and received to plaintiff’s use, and the recovery was upon defendant’s promise to divide his commissions as a real estate broker, to be received upon the sale of certain real property which had been given to plaintiff for sale, and which the latter had employed defendant to sell. Ordinarily the rule that the recovery must be secundum allegata et probata should prevail. Romeyn v. Sickles, 1 Silv. Ct. App. 594. It is competent to the parties, however, to consent to the litigation of a cause of action other than the one pleaded, and consent is inferable from the fact that evidence of the substituted cause of action was received without objection. Frear v. Sweet, 118 N. Y. 454. In the present instance, therefore, the judgment is unassailable because of variance between the pleadings and the proof, as appellant contends.

Whether or not the vendor requested defendant to pay part of the commissions to plaintiff could not' in anywise affect plaintiff’s right to recover upon the agreement with defendant to divide the commissions. In either event, plaintiff was -entitled to recover if the agreement was in fact made. The exclusion of evidence tending to show that the vendor did or did not make the request alluded to cannot, therefore, be said to constitute error.

Again, whether or not the agreement to divide the commissions was made, was a question to be determined by the justice below upon the conflicting testimony of the parties to this action, and the apparent inconsistency of defendant’s testimony with that of other and disinterested witnesses regarding other facts, we think, authorized the justice to credit plaintiff rather than defendant.

The judgment should- be affirmed, with costs:

Giegerich, J., concurs.

Judgment affirmed.  