Plewes v. Philadelphia Casualty Co.

87 N.Y.S. 1146

Opinion

PER CURIAM.

Judgment and order affirmed, with costs. Held, that while the complaint contains some allegations appropriate only in an action upon contract for services, yet it contains all the allegations necessary to constitute a cause of action for damages for breach of the contract. The cause of action may be regarded by this court as one for damages,- and the other allegations disregarded as surplusage. The amount of the recovery under the evidence would be practically the same in either form of action. The distinction between the two, under the facts of this case, is technical rather than real.

McLENNAN, P. J., dissents, upon the ground that the sole cause of action alleged in the complaint is for services rendered, and the evidence wholly fails to establish it, but only tends to prove a cause of action for damages for a breach of a contract of employment, and therefore, under the authorities, the plaintiff is not entitled to recover. Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Weed v. Burt, 78 N. Y. 191; Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663; Dexter v. Ivins, 133 N. Y. 551, 30 N. E. 594.