McDonough v. Quinn

Appellate Division of the Supreme Court of New York

McDonough v. Quinn

199 A.D. 302, 191 N.Y.S. 881, 1922 N.Y. App. Div. LEXIS 8015

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 13, 1922

StatusPublished

This text of 199 A.D. 302 (McDonough v. Quinn) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDonough v. Quinn, 199 A.D. 302, 191 N.Y.S. 881, 1922 N.Y. App. Div. LEXIS 8015 (N.Y. Ct. App. 1922).

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Opinion

Per Curiam:

On the trial the first cause of action, as alleged in the complaint, was disregarded, and the trial proceeded without objection on the theory that the plaintiff was employed at a wage of $75 per week. The judge charged the jury that the plaintiff could only recover if the agreement was made to pay that compensation, and that their verdict on the first cause of action must be for the plaintiff for the sum of $750 or for the defendant. No exception was taken to this charge.

The plaintiff also was allowed to prove over the objection and exception of the defendant an entirely different cause of action from that alleged in the second cause of action set forth, in the complaint. The defendant’s counsel moved to dismiss the second cause of action at the close of the plaintiff’s case, and renewed the motion at the close of the case, and also specifically excepted to the submission of the second cause of action to the jury under the charge of the court that if they found for the plaintiff, their verdict should be for $750 and such further sum as they found the plaintiff to be entitled to as damages upon the second cause of action. The jury returned a verdict for the plaintiff for $1,000.

Parties may, by agreement, disregard the pleadings and try the cause upon any theory they desire. But when the defendant objects and insists that the cause of action alleged in the pleading must be proved, the plaintiff should not be allowed to give evidence of a different cause of action, and [304]*304cannot recover on the new cause of action. The second cause of action should have been dismissed.

The judgment will be modified by dismissing the complaint as to the second cause of action and reducing the judgment as entered to the sum of $750, without costs to either party, and as .modified affirmed, with costs to the appellant of this appeal.

Present ■— Clarke, P. J., Laughlin, Dowling, Smith and Page, JJ.

Judgment modified by dismissing complaint as to second cause of action and reducing the judgment as entered to the sum of $750, without costs, and as so modified affirmed, with costs to appellant of this appeal.

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Per Curiam:

On the trial the first cause of action, as alleged in the complaint, was disregarded, and the trial proceeded without objection on the theory that the plaintiff was employed at a wage of $75 per week. The judge charged the jury that the plaintiff could only recover if the agreement was made to pay that compensation, and that their verdict on the first cause of action must be for the plaintiff for the sum of $750 or for the defendant. No exception was taken to this charge.

The plaintiff also was allowed to prove over the objection and exception of the defendant an entirely different cause of action from that alleged in the second cause of action set forth, in the complaint. The defendant’s counsel moved to dismiss the second cause of action at the close of the plaintiff’s case, and renewed the motion at the close of the case, and also specifically excepted to the submission of the second cause of action to the jury under the charge of the court that if they found for the plaintiff, their verdict should be for $750 and such further sum as they found the plaintiff to be entitled to as damages upon the second cause of action. The jury returned a verdict for the plaintiff for $1,000.

Parties may, by agreement, disregard the pleadings and try the cause upon any theory they desire. But when the defendant objects and insists that the cause of action alleged in the pleading must be proved, the plaintiff should not be allowed to give evidence of a different cause of action, and [304]*304cannot recover on the new cause of action. The second cause of action should have been dismissed.

The judgment will be modified by dismissing the complaint as to the second cause of action and reducing the judgment as entered to the sum of $750, without costs to either party, and as .modified affirmed, with costs to the appellant of this appeal.

Present ■— Clarke, P. J., Laughlin, Dowling, Smith and Page, JJ.

Judgment modified by dismissing complaint as to second cause of action and reducing the judgment as entered to the sum of $750, without costs, and as so modified affirmed, with costs to appellant of this appeal.

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Bluebook (online)

199 A.D. 302, 191 N.Y.S. 881, 1922 N.Y. App. Div. LEXIS 8015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonough-v-quinn-nyappdiv-1922.