The complaint in this action alleges that the plaintiff is the owner and. entitled to the possession of lot Ho. 76 described on the Warren and Turner' map iii Watervliet, which lot is described as being twenty-five feet front on Twenty-fo.urth street and ninety-four feet deep. It is also alleged 'that prior to the commencement of the action the defendant wrongfully and unlawfully entered upon said parcel of land,, claiming title thereto, and tore down the fence erected thereon by the plaintiff, and that the defendant wrongfully and unlawfully withholds possession thereof from the plaintiff, and that the plaintiff and her grantors have been in possession of said land under a claim of title and ownership for more than twénty years. She; asks for judgment that she be adjudged to be the owner of the land and entitled to have immediate possession thereof. It was clearly shown that the fence which was torn down was not on any part of lot Ho.- 76, and it was not shown that the defendant was in occupation and possession of any part of such lot at the time of the commencement of the action. The fact clearly appears; that the disputed strip of land upon which the fence in question was erected was entirely outside the boundaries of lot Ho. -76 mentioned in the complaint. - That being so, the fact that the defendant in her answer brought in an unnecessary allegation with respect to her Understanding of the real object of the action, which was to determine the title and ownership of such strip of land, and claimed to own such strip and to maintain a possession thereof, is not Sufficient, in my judgment, to save the dismissal of the action.'
The trouble with the plaintiff’s case, is that she has not alleged any cause of action with respect to the disputed strip, and she tried to prove á cause of action entirely outside; of that stated in her coin-*571plaint. The defendant never consented to the trial of any issue outside of that tendered by the complaint, and stood upon her rights when she made her motion for a dismissal. The plaintiff failed entirely to prove the cause of action which she alleged, and for that reason the complaint was properly dismissed. I think the judgment should be affirmed.
Judgment reversed on law and facts, and new trial granted, with, costs to appellant to abide event.