Laflar v. McChormick , 225 A.D. 476 ( 1929 )

Per Curiam.

The transaction between the parties on April 1, 1922, as testified to by the plaintiff herself, bound the defendant Mary McCormick to repay to the plaintiff a loan of $500 only. The record is devoid of proof of any promise of the defendant Mary McCormick made on that occasion except that contained in the plaintiff’s own testimony. The complaint as limited by the bill of particulars confined the plaintiff to proof of the agreement of that date. Under the pleadings then no recovery against the defendant Mary McCormick in excess of $500 and interest was allowable. The learned trial court erred in admitting proof of promises of the defendant Mary McCormick on other occasions.

Although the reversal of the judgment as to the appellant is put on the ground just mentioned, we are not to be understood as approving the language of the charge.

The judgment and order should be reversed on the law as to the appellant Mary McCormick and a new trial granted, with costs to the appellant to abide the event.

All concur. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.

Judgment and order reversed as to the defendant Mary McCormick on the law, and a new trial granted as to said defendant, with costs to appellant to abide the event.