
    Alfred Pionier, Respondent, v. John E. Alexander, Appellant.
    (New York Common Pleas—General Term,
    April, 1894.)
    In an action in District Court for wages, plaintiff’s evidence tended to establish a contract of hiring and performance on his part, and that there was due him §152.50; while defendant denied the contract and testified that plaintiff had been laid off, and that forty dollars had been paid him from time to time as an act of charity. Plaintiff admitted having received fifteen dollars, which in his bill of particulars he allowed in computing the amount of his claim. Held, that a judgment for fifty-eight dollars and fifty cents was not secundum allegata et probata, and should not be allowed to stand.
    Appeal from a judgment of the District Court in the city of Hew York for the third judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    
      EUas Rosenthal, for respondent.
    
      Henry G. Ha/rris, for appellant.
   Bischoff, J.

The plaintiff sued to recover thte sum. of $152.50, the amount claimed being made up of wages for ten weeks, at fifteen dollars per week, and an item of two dollars and fifty cents for materials furnished. By the-plaintiff’s evidence it was sought to establish the existence of a contract of hiring for these ten weeks and the plaintiff’s due performance. To the contrary appears the defendant’s evidence that there was no such contract; that plaintiff had been “laid off” and that forty dollars had been paid him by defendant from time to time, more as an act of charity than for any other reason.

Plaintiff admitted that fifteen dollars had been paid him when computing the amount of his claim, as appears from the hill of particulars. The justice rendered judgment in favor of the plaintiff in the sum of fifty-eight dollars and fifty cents, exclusive of costs, and from this judgment the defendant-appeals. In vieiv of the rule that a judgment must be seeundum allegada etyirohata, it is clear that this appeal should prevail. By accepting the plaintiff’s evidence as true, the justice should have awarded the full amount claimed. On the other hand, had he believed the defendant’s witnesses, a judgment for the defendant should have resulted. It is true that a recovery of $127.50 might have been had in view of the defendant’s testimony that he had paid plaintiff twenty-five dollars more than such plaintiff admitted having received during the period in question, but in no aspect of the case is tlie judgment, as rendered, to be supported. See Fuld v. Kahn, 4 Misc. Rep. 600.

The judgment should be reversed and new trial ordered,, with costs to abide the event.

G-iegbeioh, J., concurs.

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