Seavey v. Ansonia Manufacturing Co.

111 N.Y.S. 661

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 30, 1908
• Status: Published

Opinions

SEABURY, J.

In her complaint the plaintiff alleges that she entered into a contract with the defendant under which she “agreed to procure for the defendant the contract to supply ejectors for the sewage system in course of construction and installation” at Morristown, N. J. The complaint also sets forth the compensation which the defendant agreed to pay for this service, and that, “pursuant to said agreement, plaintiff procured for the defendant” the contract referred to. It also alleges the amount of the contract, and the receipt by the plaintiff of $100, and demands judgment for the balance at the rate set forth in the contract. The jury found a verdict for the plaintiff, and from the judgment entered thereon the defendant appeals to this court.

The only proof which the plaintiff offered in support of her allegation that she “procured for the defendant” the contract referred to was that she used her influence with her employer to this end. Her own testimony was to the effect that “I was to use my influence with the engineers, my employers, Williams, Proctor & Potts.” The contract which the plaintiff proved was altogether different from that which she alleged. While she offered evidence to show that she did .use her influence to secure for the defendant the contract it sought, there was no evidence that she procured this contract for the defendant. The failure of the proof to correspond with the allegations of the complaint is fatal to this judgment.

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

GIEDERSLEEVE, P. J., concurs.