La Chicotte v. Richmond Railway & Electric Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, The Richmond Railway and Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of November, 1896, upon the verdict of a jury rendered by direction of the court.
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Appeal by the defendant, The Richmond Railway and Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of November, 1896, upon the verdict of a jury rendered by direction of the court. On the 10th of June, 1893, the plaintiff’s assignor, the Wrought Iron Bridge Company, entered into a contract with the defendant whereby the former agreed to “ furnish all material, except sashes, and to construct and complete an iron power house on Johnson’s Island, in the city of Richmond, Va.,” 60 feet…
1Opinion of the Court
O’Brien, J.:
Without considering the merits of the defendant’s counterclaim, or the other points raised, there are two questions which we think *384fatal to this judgment. The first arises from the variance between the complaint and the proof. The complaint alleged performance of the contract, and over the defendant’s objection plaintiff was allowed to prove, not performance, but excuses for not performing the work in accordance with the contract. This question has been many times before the court, and the authorities all hold that it is an elementary rule of pleading that when the plaintiff…
2Cases cited3 opinions
- Bogardus v. . New York Life Ins. Co.New York Court of Appeals · 1886
- Smith v. BrownNew York Supreme Court · 1854
- Crane v. KnubelThe Superior Court of New York City · 1872
3Cited by26 opinions
- Todd v. Union Casualty & Surety Co.Appellate Division of the Supreme Court of the State of New York · 1902
- Fox v. DavidsonAppellate Division of the Supreme Court of the State of New York · 1899
- Schnaier v. NathanAppellate Division of the Supreme Court of the State of New York · 1898
- Stern v. McKeeAppellate Division of the Supreme Court of the State of New York · 1902
- Foreman's Systems, Inc. v. Milk Dealers' Crate Corp.Court of Chancery of Delaware · 1923
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