As appears by the complaint, the action was brought upon the theory that the plaintiff was entitled to recover, entirely independent of whether or not the dynamo company was insolvent at the time the property in question was transferred to the defendants in payment of a debt owing to them by Eager, the president and sole stockholder of the dynamo company. There is no allegation of insolvency in the complaint, and that issue was in no manner raised by the pleadings. It also appears that the action was tried and decided in the Municipal Court of the city of Syracuse and the judgment affirmed in the County Court, upon the theory that the question of insolvency was immaterial. Upon the trial no evidence was introduced to show such insolvency. In fact, the only witness who spoke upon the subject testified unequivocally that at the time of the sale and delivery the dynamo company was solvent.
The prevailing opinion holds, in effect, that the judgment appealed from can only be sustained upon the ground that the dynamo company was insolvent at the time of the sale and delivery of the dynamo to the defendants, and it is urged that such inference is justified by the evidence. Even if the evidence warrants such an inference, which I think it does not, this court ought not to affirm the judgment upon the ground of such insolvency for- the reasons, as above stated, that upon the trial the question was not considered of consequence and no issue of that nature was tendered by the pleadings ; the action was tried and decided upon another theory, and it seems to me that the defendants should have an opportunity to try that issue before an adverse determination thereon is made the basis for the affirmance of a judgment against them, and before they are compelled again to pay for the dynamo which they purchased.
There are no equities existing in favor of the plaintiff’s claim, and we ought not to sustain the judgment upon a theory entirely different from that upon which the action was brought and decided in the courts below, and upon a ground which it is not suggested by the brief of counsel upon this appeal was made the basis of recovery. I think the judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide event
Williams, J., concurred.
Judgment affirmed, with costs.