Keeler v. Fischer-Hansen

27 Misc. 324, 57 N.Y.S. 821

Opinion

O’Dwyer, J.

The complaint set up a written contract and alleged that the plaintiff “ only performed the work contracted to be done.” Hot one word was said in the complaint about waivers or ratifications of nonperformance.

The answer denied the allegation of due performance, and upon this issue the parties proceeded to.trial. On the trial it was not claimed that the work was performed within the time specified in the contract, but the plaintiff claimed the time provision was waived by the guarantor, this defendant.

When the plaintiff sought to introduce evidence of this waiver the defendant duly objected, and evidence,, under his exception, . was introduced. This was error. The only' issue raised by the pleadings was the performance of the written contract. McEntyre v. Tucker, 36 App. Div. 53; Elting v. Dayton, 43 N. Y. St. Rep. 363; La Chicotte v. Richmond, R. & E. Co., 15 App. Div. 384;. Schnaier v. Nathan, 31 App. Div. 227.

The judgment and order appealed from must be reversed, and a new trial granted, with' costs to the appellant to abide event.

McCarthy, J., concurs.

Judgment and order reversed and new trial granted, with' costs to appellant to abide event. -