Gorham v. Arons

Appellant, third-party plaintiff, urges that the Appellate Division improperly reversed the judgment of the trial court and dismissed its third-party complaint on the basis of appellant’s breach of its agreement with respondent, third-party defendant, since the latter’s answer, while alleging the agreement, failed to plead a breach. The record shows, however, that evidence offered to establish such breach was admitted at the trial, and that the issue was considered and determined by both the trial court and the Appellate Division — all without demur or objection from appellant, until it moved…