(dissenting). Abandoning its second and third causes of action, as appears by the return amended by stipulation *120of the parties, the plaintiff brought this action upon a written contract, dated January 28, 1898, whereby it agreed to place advertising cards of the defendant in 187 cars in Providence, Rhode Island, for a term of eleven months, commencing February 1,. 1898, and according to which the defendant agreed to pay §112.20 at the end of each month during the term of the contract, seeking to recover the amount alleged to be due for the month of February, 1898, in return for full performance of the contract on its part. The amended answer of the defendant set up a general denial, and a separate defense, to the effect that it signed the contract through false and fraudulent representations of the plaintiff, and in addition thereto, a counterclaim for damages in connection with another contract between the parties hereto, alleged to have been entered into on or about the 2d day of December, 1897.
After an apparently protracted trial, in which the evidence was-decidedly conflicting, the justice charged the jury, “ If you find that Mr. Weinberg (the president of the plaintiff) is telling the truth, and it was agreed that they (the defendant) would spend in Providence the same amount of money they would spend in. St. Louis, it only proves after all that that was one hundred and two-dollars. * * * If you believe, from the testimony, that that was the understanding * * * you will find a verdict for the-plaintiff, for the sum of one hundred and two dollars, with five dollars interest, which makes a total of one hundred and seven dollars.” To this the defendant excepted, but the jury so found. For this the judgment should be reversed and a new trial ordered. The defendant, by its answer, set up no other contract than the one declared on in the complaint, admitted its execution, and, as-it had the right to do, set up fraud as a defense thereto. Estelle v. Dinsbeer, 9 Misc. Rep. 485, 486. Furthermore, the defendant, at the trial, moved to be allowed to set up- affirmatively repudiation and rescission of the contract upon discovery of the fraud. No other contract than the one declared on in the complaint appears in the pleadings, so that -the charge to the jury, and their finding seems to be a virtual assumption of the exercise of equity powers, apparently recognizing the plaintiff’s right of recovery upon the contract sued upon, but reforming that contract because the same, either through mistake or fraud, was not quite what the parties made or intended to make. This was error be*121cause extra-jurisdictional. Ferree v. Ellsworth, 47 N. Y. St. Repr. 119. If this be not in effect reformation, then it must be conceded to be a recovery upon a cause of action not pleaded, and we may say as was said by Andrews, J., in Reed v. McConnell, 133 N. Y. 425, 433, “ This recovery was in violation of the rule that no judgment can be sustained in favor of a plaintiff on a cause of action not alleged in the complaint, unless the defendant, by his silence or conduct, acquiesced in the trial of the new and different cause of action, upon which the judgment proceeded.” This the defendant did not do.
Supposing, however, that it had been pleaded, then it is impossible to say that the defendant is at fault because it did not return the sum of two dollars and twenty cents received from the plaintiff, because it nowhere appears that such sum was in any manner connected with such agreement as the one upon which plaintiff recovered.
The judgment should be reversed and a new trial ordered.
Judgment affirmed, with costs.