Adorff v. Bechter ( 1911 )

Giegerich, J.

(concurring.) The pleadings in this action were oral, the plaintiff’s complaint being “ conversion.” The testimony tended to show merely a breach of contract as to which there was a disputed question of fact, and the plaintiff recovered a judgment. The judgment contains no clause authorizing the arrest and imprisonment of the defendants and is, therefore, a judgment on contract only. The appellants’ ground for reversal is substantially that, the complaint having set up a cause of action for conversion, no judgment in contract could be recovered. This would be true had the pleadings been written. In such a case a recovery can only he had for the cause of action set forth in the complaint, hut where, as in the case at bar, the pleadings are oral, the court must resort to the testimony to determine the nature of the action, more than to the exact language of the complaint. Greenberg v. Angerman, 84 N. Y. Supp. 244; Cossel v. Altschul, 91 id. 1. The judgment herein must, therefore, he affirmed.

Judgment affirmed, with costs.