
    Reuben Allerton, Respondent, v. Rhineland Machine Works Company, Appellant.
    First Department,
    December 4, 1914.
    Pleading — sufficiency of complaint in action by traveling salesman for commissions—failure to prove cause of action pleaded.
    Where the complaint in an action by a traveling salesman to recover for commissions lacks essential averments, and the defendant’s motion to dismiss on the ground that the complaint failed to state a cause of action was denied, and the complaint was not amended nor the pleadings conformed to the proofs, a judgment in favor of the plaintiff should be reversed and the complaint dismissed.
    If a plaintiff fails to prove the cause of action alleged in his complaint, and the objection is properly taken and preserved by exception, and the pleadings are not amended, a judgment in favor of the plaintiff on a cause of action entirely separate and distinct from that alleged cannot be sustained on appeal.
    Appeal by the defendant, Rhineland Machine Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of January, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of February, 1914, denying the defendant’s motion for a new trial made upon the minutes.
    
      George D. Zahm, for the appellant.
    
      Roswell S. Nichols, for the respondent.
   Hotchkiss, J.:

Plaintiff sued for commissions as traveling salesman. At the opening of the trial, defendant unsuccessfully moved to dismiss on the ground that the complaint failed to state a cause of action, and the case proceeded to trial on the merits. The complaint was not amended, nor were the pleadings conformed to the proofs. The complaint is worse than inartificial; it totally lacks essential averments. It alleges that “ heretofore and on the 2nd day of September, 1910, defendant employed the plaintiff as a salesman and office assistant,” for which services defendant agreed to pay plaintiff twenty-five dollars per week, his traveling expenses and five per cent commissions “on the selling price of all goods dealt in by the defendant which were sold by or through the plaintiff; ” that plaintiff entered upon and continued in defendant’s service until September 8, 1911, when he resigned; “that between the 2nd day of September, 1910, and the 8th day of September, 1911, plaintiff secured and the defendant undertook to fill many orders for goods dealt in by the defendant; that plaintiff has not access to the books of the defendant and does not know, nor is he able to ascertain the exact amount of the gross selling price of the goods ordered from the defendant through the plaintiff during said period.” It is further alleged that plaintiff had received his salary and $1,165.11 “on account of the aforesaid commission and expenses,” but no more; wherefore, plaintiff demands judgment directing that an accounting be had of the moneys received or to be received by defendant for goods sold by plaintiff, and for general relief.

There is no allegation that the plaintiff sold any goods or that he ever incurred expense. There is no allegation that anything is due plaintiff, and the only way in which it is possible to infer that plaintiff ever earned any commissions or incurred any expenses arises from the allegation that plaintiff had been paid the amount set forth “ on account of the aforesaid commission and expenses.” No judgment based on such a record can stand.

Section 1207 of the Code of Civil Procedure provides that where there is no answer, plaintiff may not have a judgment more favorable than that demanded in the complaint; “where there is an answer, the court may permit the plaintiff to take any judgment, consistent with the case made by the complaint, and embraced within the issue.” This has long been the law, but I know of no authority for the proposition that where the “ case made by the complaint ” is nil and tenders no issue, and this objection is seasonably made and fortified by exception, and where the pleadings have not been made to conform to the proofs, the objection is waived by the objector continuing in court during the trial of that which the court may be pleased to consider the issue, and on which judgment is subsequently rendered. The ancient rule that the judgment should be in conformity with the allegations and proofs has not been abolished by the Code but, on the contrary, has often been held to be “fundamental in the administration of justice.” One of the earliest cases after the Code was Wright v. Delafield (25 N. Y. 266). That was an action in equity to restrain the prosecution of actions at law on notes given for the purchase price of land, and praying for specific performance of a contract to convey. In his answer defendant set up matters of defense but no counterclaim on the notes, notwithstanding which, he was given judgment thereon. In the course of its opinion the court said: “ Parties go to court to try the issues made by the pleadings, and courts have no right impromptu to make new issues for them, on the trial, to their surprise or prejudice, or found judgments on grounds not put in issue, and distinctly and fairly litigated, ” and the affirmative judgment in defendant’s favor was reversed. The cases are numerous where it has been held that if the plaintiff fails to prove the cause of action set up in his complaint, and the objection is properly taken and preserved by exception, and no amendment of the pleadings is had, a judgment in plaintiff’s favor on a cause of action entirely separate and distinct from that alleged cannot be sustained on appeal. (Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420; Reed v. McConnell, 133 id. 425; Brightson v. Claflin Co., 180 id. 76; Gordon v. Ellenville & Kingston R. R. Co., 119 App. Div. 797; affd., 195 N. Y. 137.) All of these cases go upon the principle that “pleadings and a distinct issue are essential in every system of jurisprudence and there can be no orderly administration of justice without them.” (Brightson v. Claflin Co., supra, 81.) As was said in the Southwick Case (supra, 429): “A defendant may learn outside of the complaint what he is sued for and thus may be ready to meet plaintiff’s claim upon the trial. He may even know precisely what he is sued for when the summons alone is served upon him. Yet it is his right to have a complaint, to learn from that what he is sued for and to insist that that shall state the cause of action which he is called upon to answer, and when a plaintiff fails to establish the cause of action alleged, the defendant is not to be deprived of his objection to a recovery by any assumption or upon any speculation that he has not been injured.” Respondent cites Rogers v. N. Y. & T. L. Co. (134 N. Y. 197) and similar cases, which only go to support the principle of Reed v. McConnell (supra), where it was said (p. 434): “ Where a cause of action is imperfectly stated, or on the trial a variance is disclosed between the pleadings and the proof, not affecting the essential nature of the claim asserted, the court has ample power to grant relief without turning a party out of court.”

The judgment should be reversed and the complaint dismissed, with costs to the appellant.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment reversed and complaint dismissed, with costs. Order to be settled on notice.  