By the Court,
E. Darwin Smith, J.When this case was before the court, at general term, in the eighth district, it was decided, in effect, that upon the face of the record of the suit in the justice’s court, that action was brought to recover in assumpsit for a breach of warranty. The complaint before the justice was in writing, and there was no appearance by the defendant, and no defense made by him. According to this decision, which is the law of the case, and which we think clearly correct, the record of the judgment imports a judgment upon the cause of action stated in the complaint ; that is, for a breach of warranty. There is but one cause of action stated in the complaint, and that is indivisible. The judgment must be deemed a judgment rendered upon this complaint, and for the cause of action therein stated and set *351forth. The suggestion in the opinion of the learned j udge who gave the opinion of the court, that neither party was estopped by the record, and that either party was at liberty to show what was actually litigated, or the grounds and proof on which the judgment actually passed, we think not essential to the decision of the questions then before the court; and we do not think it was the intention of the court definitively to pass upon that question. Regarding the question, therefore, as an open one, we think the suggestion which was followed at the circuit must be considered a mere dictum, and the question open for our consideration. Certainly, we would not assume to review or reconsider, in the same action, a question definitely decided by our brethren, at a general term in any other district. Parol proof was received at the circuit, under the objection and exception of the plaintiff,showing t-he.proofs and proceedings before the justice, on the trial of the action in which such judgment was rendered. The question is therefore distinctly presented upon exception, for our decision, whether such evidence was admissible. We think it was erroneously received, and that it was simply directed to contradict the record; and that this was as inadmissible as if the record had been one of this court, or of any court of record. It is undoubtedly true that where, upon the face of the record, there is uncertainty in regard to the questions which might have been litigated upon the trial; where a complaint sets out several causes of action, as under the former practice, where a declaration set out a promissory note or bill of exchange, and the common counts; or where a trespass, or a conversion of various articles of personal property, were stated in such general language as to embrace a variety of trespasses, or make proof of different trespasses or actions, or causes of action, admissible under the pleadings, then paroi proof was always admissible, and is clearly proper where a record is set up or given in evidence, as above, to show aliunde the real question litigated. (8 Wend. 9. 5 Cowen, 120. 3 Denio, 238. 4 Barb. 457. Doty v. Brown, *3524 N. Y. Rep. 480.) In the case of Young v. Rummell, (2 Hill, 481,) Judge" Beardsley states the rule as follows : “The record must show that the same matter might have come in question on the former trial; and the fact that it did come in question, may be shown by proof aliunde. For example, when the suit is upon a promissory note, and the defendant shows a record where the declaration contained the money counts, he may then call witnesses to prove that the note was given in evidence, and its validity tried in that action.” This case states the rule, I think, correctly. By this rule the pleadings must warrant the evidence in respect to the cause of action in question. In this case the complaint was in assumpsit, as we have seen, upon a contract of warranty. No fraud is charged in it. Evidence of fraud -would have been inadmissible under the complaint. Proof of fraud was not proof of the complaint. The evidence which the justice -was properly entitled to receive, was evidence to prove the facts stated in the complaint. Proof of any o'ther cause of action did not sustain the complaint, and, the plaintiff was not entitled to recover upon any such proof. If such proof was, in fact, given, it was outside of any issue pending before the justice; and he had no right to render any judgment thereupon; and particularly as the defendant did not appear to waive the objection. It may be that the defendant was content, upon seeing the complaint, to let the plaintiff recover for a breach of the warranty. It would be a fraud upon him to let the plaintiff, upon such a complaint, recover upon another distinct cause of action. It is a fundamental rule, that the proof to war-want a recovery, must be secundum allegata. Courts, when the parties appear, often amend the pleadings, on the trial, so as to enlarge the issues; but a new cause of action cannot be proved without such amendment of the pleadings, in any case. The amendment is necessary to sustain the verdict and judgment. Holding, as we are bound to do, under the decision of this case by the general term of the eighth dis*353trict, that but a single cause of action was stated in the complaint before the justice, it would be in conflict with sound principle to receive proof that such judgment was, in fact, rendered upon proof of another distinct cause of action. We are bound to hold that the judgment was rendered upon due proof of the cause of action stated in the complaint. It was, therefore, error in the circuit judge to receive proof that the judgment was rendered upon proof establishing fraud in the sale of the mowing machine.
[Monroe General Term, June 1, 1863.The nonsuit must therefore be set aside, and a new trial granted, with costs -to abide the event.
Judgment accordingly.
J2. Darwin Smith, Johnson, and James 0. Smith, Justices.]