Garton v. Garton

712 Findings of fact numbered 50 and 51 and conclusions of law numbered 3 and 4 are reversed and new findings and conclusions will be made, such findings and conclusions to be submitted on five days’ notice. Plaintiff’s complaint was predicated upon the theory that he was entitled to a one-half interest in the property in question and on the trial he did not establish a right to any greater relief. It was, therefore, error to direct defendant to convey the property to plaintiff alone. That relief was not authorized by the evidence nor under the allegations of the complaint, and defendant was not apprised of the fact that any such claim would be made. (Cf. Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; Graham v. Read, 57 N. Y. 681; Gettins v. Boyle, 184 App. Div. 499, mod. on reargument, 186 App. Div. 966.) Present — Holán, P. J., Carswell, Sneed, Wenzel and Mae-Crate, J J.