In re Eisenberg

Inasmuch as the petition alleged that respondent occupied 630.22 square feet of space and asked that the court fix the emergency rent on that space, there was no basis for the court’s fixing rent on an area of 669 square feet. Although, at the trial, there was some testimony by an expert that the tenant’s space, with partitions removed, would be 669 square feet, there was no amendment or even a request to amend the petition in this respect. No reason is shown why the general rule that — “A party must recover not only according to his proof but also according to his pleadings ” — should not be applied (see Bosner v. Z7. S. Waterways Corp., 278 App. Div. 168, 170, affd. 304 N. Y. 580). The rent must therefore be computed on the basis of 630.22 square feet. The dispute as to respondent’s exclusion from one half of the secretarial space may not be considered in this proceeding to fix rent. Order unanimously modified to the extent of fixing the rent at $131.30 a month and, as so modified, affirmed, without costs. Settle order on notice. Concur1— Breitel, J. P., Rabin, Frank and Valente, JJ.