
    The Christie Manufacturing Co., Respondent, v. The Travers Brothers Co., Appellant.
    (New York Common Pleas
    Additional General Term,
    December, 1895.)
    A judgment which is not in-accordance with the pleadings or proof cannot-be sustained.
    Appeal by the defendant from a judgment of the District. Court in ,the city of Hew York for the eighth judicial district,. rendered by the justice thereof, without a' jury,,in favor of the plaintiff. .
    Action -to- recover á balance alleged to be due the plaintiff for work, labor and services and materials furnished..
    The pleadings were- oral, and the defenses pleaded were a • general denial, payment and damages for breach of contract. ■
    The opinion States the facts so far as they are material.
    
      James P. Campbell, for appellant.
    
      John M. Perry, for- respondent. ,
   Oiegebioh, J.

The plaintiff in'this action'seémed-to have one theory of its rights (as-shown by the amount.demanded), the defendant another (as shown by the amount of its offer of judgment), and the justice still a third (as shown by the amount awarded), with none of which we can agree upon the facts appearing in the record.

The bill of particulars shows the action to have, been to recover forty-eight dollars and' eighty cents, the unpaid bal-. anee on a- bill of eighty-eight dollars and eighty cents (a pay- ' ment of forty dollars being credited on account), and in addition nine dollars and ten cents.for extra Sunday work, making a total of fifty-seven dollars, and ninety cents, for which judg- . ment was asked., .

A written contract, in form of an accepted proposal, 'was •read in evidence as follows: “ We will take the old crank pin out- of the crank of said Corliss engine, will rebore' the eye of the crank, fit and shrink in one new pin, fit stem to brasses complete for the sum of seventy-five dollars.”

The 'bill fo.r eighty-eight dollars and eighty, cents, dated June 17, 1895, appears from its items and from the plaintiff’s letter of March .2.5, 1895, to have been precisely the work called for by this contract. Yet the contract was, without any sufficient evidence of its modification or abrogation, ignored, and tlie recovery allowed was -based upon'the sum of eighty-eight dollars and eighty cents, seemingly a quantum meruit, but without proof of the value:of the work done. The judgment was for forty-five dollars and thirty cents and costs, apparently obtained by allowing plaintiff eighty-eight dollars and eighty cents and crediting the defendant with forty dollars paid on account, and three dollars and fifty cents, the amount of an overpayment on a former transaction, but not allowing plaintiff its charge of nine dollars and ten cents for Sunday work.

The utmost that could properly have been awarded the plaintiff was less than this; namely, forty-four dollars and ten cents, obtained as follows: Allow plaintiff the full con-

tract price of seventy-five dollars, add to this nine dollars and ten cents,- its entire charge for Sunday work, making a total of eighty-four dollars and ten cents, and deduct from this forty dollars, the amount conceded by the plaintiff to have been received upon account, leaving forty-four dollars and ten cents.

As the judgment is not supported by the proofs in any. aspect the same should be reversed. Fuld v. Kahn, 4 Misc. Rep. 600; 24 N. Y. Supp. 558; 54 N. Y. St. Repr. 134; Owens v. Flynn, 7 Misc. Rep. 171; 57 N. Y. St. Repr. 531; 27 N. Y. Supp. 336; Pionier v. Alexander, 7 Misc. Rep. 709; 58 N. Y. St. Repr. 341; 28 N. Y. Supp. 157; Robinson v. Ficken, 10 Misc. Rep. 758.

A new trial will no doubt result in a more satisfactory presentation of the evidence, which -is confused, and will eliminate, and so render unnecessary any present discussion of, certain other questions argued upon this appeal.

For these reasons the judgment must be reversed and a new trial ordered, with costs to appellant to abide .the event.

Daly, Oh. J., concurs.

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