#### Henry W. Rosebrooks, plaintiff and respondent, *vs.*William B. Dinsmore, President of Adams Express Company, defendant and appellant.

1. Proof on a trial of issues in an action, that a portion of goods shipped by the defendants for the plaintiff arrived at their place of destination, where their delivery was refused to an agent of the latter, does not sustain a complaint for neglecting to forward all of such goods from such place of destination to another, to which the defendants were directed to forward them, and for losing and destroying such goods by their negligence, where there is no evidence offered of such direction to change the destination,

2. Such a variance between the cause of action and that of which the evidence offered might be proof, does not permit the court to conform the pleadings to the proofs, as the two causes of action differ in their whole scope; and the failure of proof is complete under section 170 of the Code of Procedure.

(Before Mohem,, Garvhí and Joses, JJ,)

Heard February 12, 1866;

decided March 12, 1866.

This action was brought to recover the value of goods shipped for the plaintiff by the defendants, in the fall of 1852, from New York to a consignee (Cantwell) at Harper’s Ferry, Virginia.

*673The complaint alleges that before the arrival of the goods at their destination the consignee had left the place, and the defendants were directed to forward the goods from thence to Washington, to the same consignee. That the defendants neglected so to forward the goods, and so negligently acted in the premises that the goods were lost and destroyed. Upon the trial before the referee it appeared that a portion of the goods arrived at Sandy Hook, a place about a mile' from Harper’s Ferry, on the opposite side of the river, and shortly after the consignee demanded the goods there of the agent of the defendants, who refused to deliver them. The referee reported in favor of the plaintiff for the value at Harper’s Ferry, of the goods so demanded, with interest. Judgment was entered on the report accordingly, with costs. From this judgment the defendants appealed. The direction, notice and neglect of the defendants to forward the goods to Washington, as alleged in the complaint, was not proved.

*O, A. Seward,*for the defendant, appellant.

*Torrance & Spaulding,*for the plaintiff, respondent.

By the Court,

Garvin, J.

The first question presented in this case for our consideration, is whether the plaintiff was entitled to judgment upon the facts proved, although not upon the cause of action set forth in the complaint; upon which he cannot recover. If the cause of action had been for refusing and neglecting to deliver the goods at Sandy Hook, when demanded, it would have presented a very different question. The goods having been thereafter lost or destroyed, the defendants might have been liable, because part of the arrangement was to forward to an agency nearest the place of destination. This was Sandy Hook, where the goods were detained for the want of a military permit to allow their passage to Harper’s Ferry. Here the consignee elected to take and receive them. This brings us to the question of the plaintiff’s right to judgment ■ under this complaint, upon the facts proved. At the *674close of the plaintiff’s case, the defendants moved to dismiss the complaint, on the "ground that *no*contract had been proved *as alleged.*This is equivalent to saying the cause of action, *as alleged in the*complaint, has not been proved. If no such question had been raised, and the parties had proceeded without. objection to the evidence, or raising any suoh question, thereby virtually agreeing to try a cause of. action not in the complaint, or covered by the answer, and allowed the evidence to go to the referee without regard to the pleadings, he, no doubt, might have pronounced any judgment which the facts proved authorized, or to which the party was entitled. (Code, § 173.) But where the allegation- of the cause of action or defense to which proof is directed, is “ unproven ” *in its entire scope and*meaning, and the objection is taken to the admissibility of evidence, showing another ground of action, or the question is raised directly, on motion to dismiss the complaint, it is held under section 170 of the Code to be a failure of proof. *(Belknap*v. Sealey, 14 *N. Y. Rep.*143. 3 *Bosw.*250. *Id.*615. 10 *N. Y. Rep.*363.) The allegation in the complaint of notice and direction to forward to Washington, was not proved, and so the referee has found ; but a demand and refusal to deliver the goods at Sandy Hook was proved. Upon this evidence the referee bases his report. In this we think he errred. The allegation in the complaint was, in its entire scope and meaning, not proved. To allow a conformation of pleadings now to any facts proved, would authorize the plaintiff to recover for a tort, in an action upon a contract. The judgment must be reversed, and a new trial ordered, costs of appeal to the appellant to abide the event.

Order of reference vacated.