Levins v. Troy Associates, Inc.

It is axiomatic that, upon a trial, “ [a] party must recover not only according to his proofs, but according to his pleadings ” (Chin v. Fletcher, 21 Misc 2d 421). And this rule applies as well to a plaintiff who, on motion, seeks summary judgment in his favor striking the answer (Strauss v. Kende Galleries, 203 Misc. 941; Progressive Credit Union v. Mount Vernon Wiping Cloth Corp., 5 A D 2d 166). The present is not an action based on the original loan or the original note, and therefore I need not consider whether in such a suit, plan tiff would be entitled to summary relief. Of course, the…