In Brennan v. The Mayor (62 N.Y. 365), the pay-rolls were introduced by the defendant, and so open to the objection that they were not evidence against the plaintiff, but in the case before us they were put in by the plaintiff, and the defendant became entitled to the benefit of such facts as they contained. They had an important bearing upon the issue, and cannot be disregarded.
As the case stood before the trial court, it was its duty to dismiss the complaint, for the alleged cause of action had not been made out. It is not necessary to restate the grounds of this conclusion, for in regard to them we concur with the learned court below. The appellant, however, desires us to amend the complaint so that the plaintiff shall be designated as "record clerk of the Court of Special Sessions," and supposes that this may be done under section 723 of the Code of Civil Procedure. If the section applies to this court, the power should not be exercised unless it is plain that no substantial right of the adverse party would be affected.
Here the case has been tried upon a different issue, and without amendment disposed of by the General Term. The application should have been to that court, or the trial court. The plaintiff stands before us as one who has performed services and is refused compensation; so far his claim is meritorious. But the defendant succeeded in defeating it upon grounds which made it unnecessary to go into evidence on its part; had it been otherwise, a different case might have been made out.
Upon the pleadings and the theory on which the case was tried, we think the judgment right and it should be affirmed.
All concur, except RAPALLO, J., absent.
Judgment affirmed. *Page 503