Opinion
June, 1921.
Judgment reversed and new trial granted, without costs to either party. The record shows that defendant, appellant, was not afforded an opportunity to present his case because the learned trial judge stated that he intended to order an accounting, which was the prayer of the complaint and the answer. For that reason he excluded evidence on plaintiff's cross-examination directed to the issues presented by the answer, and defendant was not permitted to give any evidence. The subsequent judgment for plaintiff for a stated sum was contrary to the theory on which the case was tried. In an action in equity it was error to refuse to receive evidence of expenditures by the defendant tenant in common for repairs and taxes and assessments on the premises for failure of allegation that plaintiff consented to the payments. ( Ford v. Knapp, 102 N.Y. 135; Clute v. Clute, 197 id. 439; Lyons Nat. Bank v. Shuler, 199 id. 405; Barker v. Barker, 172 App. Div. 244, 251.) Blackmar, P.J., Mills, Rich, Kelly and Manning, JJ., concur.