#### Selina Weeks, Appellant, *v.*New York, Westchester and Boston Railway Company and City and County Contract Company, Respondents.

Second Department,

June 2, 1911.

Judgment — conformity with, allegations and proofs — injunction.

Judgments must be rendered in conformity with the allegations and proofs of the parties.

Where a plaintiff presents a distinct theory in her pleading, produces evidence in support thereof and insists that the facts necessary to a recovery on that theory have been established, she is not entitled to the relief asked on the ground that the court upon the evidence might have granted it upon another theory.

Thus, where one asking an injunction and damages against a railroad for obstructing a public highway urges that her evidence establishes the existence of the alleged highway and makes no effort to amend her ' complaint, she is not entitled to recover on the ground that the evidence might have justified a finding that she had a private right of way over the alleged highway and that accordingly she was entitled to some relief.

Appeal by the plaintiff, Selina Weeks, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 28th day of October, 1910, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits.

*A. P. Bachman [ John Oscar Ball*with him on the brief], for the appellant.

*J.Addison Young [Allen Wardwell*with him on the brief], for the respondents.

Woodward, J.:

The complaint alleged ownership of certain lots bounded on Cedar street, as shown upon a map duly filed in the office of the clerk of Westchester county, and that the defendant railroad company is constructing or causing to be constructed along the lots facing on Orchard street and across Cedar street an embankment and bracks thereon for the purposes of its busi*536ness; that the defendant City and Comity Construction Company is engaged in constructing such embankment; that the railroad company had caused to be erected across said Cedar street, the same being a public street, the said embankment, thus obstructing the access of this plaintiff through Cedar street to her property. The relief asked is that the defendants be . enjoined from interfering with the free use of Cedar street, compelling defendants to remove the obstructions upon the street, and for damages. Upon the trial of the action, which proceeded upon the theory that Cedar street was a public highway, the learned court found that Cedar street, as laid out on the map and at the point abutting the plaintiff’s- property, was not a public street, and gave judgment accordingly. The plaintiff appeals from the judgment entered upon such decision.1

While the evidence introduced by the plaintiff in the effort to sustain her complaint might justify a holding that she had a private right of way over Cedar street as laid down upon the map by which her, purchases were described, there can be no doubt that the learned court was correct ■ in holding that she had failed to establish the cause of action alleged in the complaint. The plaintiff made no effort to amend her complaint; indeed, the principal contention on this appeal is that she has established the existence of a public highway, but it is urged, in any event, that she was entitled to some, relief, and much good law is cited to show that a court of equity, having gained jurisdiction for any purpose, may afford, all the relief to which the parties are entitled, but the trouble is that the plaintiff has not brought her case' within these rules; she is not a,skin g for the relief to which the facts might entitle her, but to the'relief which she would be entitled to if she had established the facts to be as she alleged them, and as she attempted to prove them, aiid as she still insists she has proved them. It is still the rule hi this State that judgments must be rendered in conformity with the allegations and the proofs of the parties; *secundum allegata et probata*is fundamental in the administration of justice. *(Gordon*v. *Ellenville & Kingston R. R. Co.,*119 App. Div. 797, 801, and authorities there cited.) There is ample provision in the Code' of Civil Procedure for amendment;, parties, are afforded every *537opportunity to get their real case before the court, but where a party presents a distinct theory, produces her evidence in support of that theory, and insists that the facts necessary to that theory have been established, she is not entitled to relief because, upon another theory, the court might have granted it upon the evidence adduced.

The judgment appealed from should-be affirmed, with costs.

Jenks, P. J.,. Hirsghbeeg, Burr and Rich, JJ., concurred.

Judgment affirmed, with costs.