Glasscock v. Lotus Theatre Co. , 141 N.Y.S. 478 ( 1913 )

GUY, J.

This is an appeal from a judgment in favor of plaintiff in an action brought to recover for work, labor, and services. At the trial testimony was admitted, over the objection and exception of defendant, which was not relevant to any of the issues raised by the pleadings. Subsequently, on motion of plaintiff’s counsel, and over the objection and exception of defendant’s counsel, plaintiff was permitted to amend his complaint so as to conform same to the evidence, to the admission of which defendant had so objected and excepted. This was in violation of the well-established - rule that, where a case has been tried upon the issues raised by the pleadings and exceptions taken to the improper admission of evidence under the pleadings, the error cannot be cured by a subsequent motion to amend the pleadings to conform to the evidence so improperly admitted. See Bjorkegren v. Kirk, 53 Misc. Rep. 560, 103 N. Y. Supp. 994.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.