Determination of the Appellate Term unanimously affirmed, with costs. The record before us on this appeal shows that the judgment recovered by the plaintiff in the Municipal Court was upon a cause of action not pleaded in his complaint and not sustained by his proof. Under the evidence offered by plaintiff and the theory of his pleading there was no necessity for the defense to plead the Statute of Frauds, and there was no defect in pleading by the defendant. (See Fanger v. Caspary, *90687 App. Div. 417.) Plaintiff failed to prove the cause of action pleaded and submitted to the jury, and since no other cause of action was pleaded, proved, suggested or submitted, plaintiff’s claim that such a cause of action exists is no justification for the granting of a new trial. Rich, Manning, Young and Kapper, JJ., concur; Kelly, P. J., not voting.