The plaintiff, a broker, made a sale in the year 1916 for the defendant corporation of 525 tons of mixed acid to Marden, Orth & Hastings; deliveries to be made over a period of one year ending *69in January, 1917. Harden, Orth & Hastings accepted a portion only of the deliveries contemplated. In January, 1917, Mr. Backus, general sales agent of the defendant, called upon the plaintiff and discussed an adjustment of the liability under the contract with Harden, Orth & Hastings.
At the suggestion of plaintiff a conference was held with Mr. Orth, one of the buyers, at which it was proposed that the buyers pay damages for the failure to complete the contract or make a new contract to take a quantity of more than 525 tons and also buy from defendant such carload quantities as Harden, Orth & Hastings might require until they were able to make a new contract, subject to the qualification of defendant’s price being as low as others. On December 12, 1917, the Atlas Powder Company entered into a contract with Harden, Orth & Hastings for 4,000,000 pounds of mixed acid, which were all delivered and paid for.
Plaintiff has sued for a commission on this contract. He alleges:
“ That between the month of May, 1916, and the month of December, 1917, at the said City of New York aforesaid, the plaintiff rendered services for the defendant, at its special instance and request, as a broker, in the salé for the defendant of certain goods, wares and merchandise consisting of mixed acid.
" That the defendant agreed to pay to the plaintiff for his services in procuring a purchaser for, or effecting a sale of said goods, wares and merchandise, a sum equal to one per cent of the total prices agreed to be paid therefor by the purchaser thereof. That pursuant to said agreement, the plaintiff sold for the defendant 4,000,000 pounds of said goods, wares and merchandise at agreed prices amounting in the aggregate to the sum of $267,000.”
On the argument counsel for plaintiff admitted that his client was not the direct producing cause of the contract for the 4,000,000 pounds. He attempted to prove at the trial another agreement by the terms of which he was to be compensated for the commission, which he lost as a result of the cancellation, by being given commissions on new contracts.
The plaintiff testified with reference to the arrangement: “ Mr. Backus brought up the fact in this conference that they were obligated to me for a commission and I stated that I would take my commission out of this next contract.” Also that: “ Mr. Backus brought up the fact to Mr. Orth that they were obligated for a commission on this contract, that they had delivered only a car or two on, and I said: ‘ Well, I will let my commission go on this new contract; I will waive my commission on the old contract and I will take my commission on the new one.’ Backus said: 1 All right.’ ”
*70On cross-examination plaintiff testified: “ Q. Do you claim that you did anything other than what you have testified to, to effect the sale of 4,000,000 pounds? A. I do not. Q. So that, you have given now all the testimony there is regarding any services you rendered to effect this sale of 4,000,000 pounds? A. Yes.” And again he testified: “ Q. You did not take any part in the making of that particular contract? A. I have so testified. Q. And what part, if any, did you take in the immediate negotiations that resulted in that contract? A. None whatever.”
In his complaint the plaintiff alleges a cause of action for commissions, to the extent of averring that he fully performed the contract and completed the sale by which .he earned this commission. Upon the trial no attempt was made to show that he was the producing cause of the sale.
It is argued by plaintiff that he is entitled to the commission because of defendant’s alleged undertaking in consideration for plaintiff’s consent to surrender a right to brokerage on the first sale. This refers to a contract entirely different from that set forth in the complaint. Plaintiff pleads on the basis of a straight commission. He seeks to recover on an alleged contract by which he was to receive compensation for giving up any right he might have had to commissions. Even assuming that he was to receive in lieu of the brokerage an amount equal thereto, the contract on which recovery is predicated was not pleaded.
Timely objection was taken to the admission of evidence upon the ground that the contract sought to be proved was not that pleaded.
Under the circumstances, the defendant was entitled to a dismissal of the complaint because of failure of proof.
In Walrath v. Hanover Fire Ins. Co. (216 N. Y. 220, 225) the court said: “It is fundamental that in civil actions the plaintiff must recover upon the facts stated in his complaint, or not at all. In case a complaint proceeds on a definite, clear and certain theory, it will not support or permit of another theory because it contains isolated or subsidiary statements consistent therewith. A party must recover not only according to his proofs but according to his pleadings. (Northam v. Dutchess Co. Mut. Ins. Co., 177 N. Y. 73; Canton Brick Co. v. Howlett, 169 N. Y. 293; Brightson v. Claflin Co., 180 N. Y. 76; Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420.)
“ At the close of the entire evidence the court permitted the plaintiff, under the proper objection and exception of the defendant, to insert in the complaint, as an amendment, allegations to the effect that the defendant agreed to deliver the policy of insurance *71and had failed and neglected to perform that agreement. The defendant, as we have stated, objected throughout the trial to the admissibility of the evidence in proof that the defendant made a parol agreement to insure the plaintiff and violated it. The complaint could be amended only at a time which would give the defendant a right and opportunity to meet by proof the allegations made against it. (Romeyn v. Sickles, 108 N. Y. 650; Lamphere v. Lang, 213 N. Y. 585; Audley v. Townsend, 128 App. Div. 431.) Moreover, it was error to permit at the trial an amendment which changed substantially the claim made in the complaint. (Dexter v. Irins, 133 N. Y. 551; Spies v. Lockwood, 40 App. Div. 296; Code of Civil Procedure, § 723.) ” (See, also, Blackwell v. Glidden Co., 208 App. Div. 317.)
We deem it expedient to advert to an error in excluding evidence offered by the defendant for the purpose of showing how the subsequent contract, in relation to which the plaintiff demanded a commission, was actually secured. The court ruled that the evidence was inadmissible because plaintiff conceded he was not directly responsible for obtaining the contract, disregarding the fact that the defendant had not conceded the truth of plaintiff’s testimony or that conversations to which he testified had taken place.
The judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
Clarke, P. J., and McAvoy, J., concur; Merrell and Finch, JJ., dissent.