Meredith v. Canaday 230 A.D. 733

Judgment reversed upon the law and the facts and a new trial granted, costs to the appellant to abide the event. Plaintiff did not prove the facts alleged in the complaint. The case was submitted to the jury on a theory different from that set forth in the complaint. Defendant moved, at the close of plaintiff’s ease and at the end of the whole case, to dismiss the complaint on the ground of variance between the pleading and the proof. The motions should have been granted. Defendant should have been permitted to plead the Statute of Frauds for causes of action claimed to have been proved. The verbal promises to repay these loans were within the Statute of Frauds. However, upon the proof presented plaintiff would have a cause of action for money had and received, payable on demand, as against which the Statute of Limitations would be a defense except as to the last loan of §750. Lazansky, P. J., Rich, Young, Hagarty and Cars-well, JJ., concur.