¶1The complaint contains substantially all the allegations required to be inserted in a bill in equity to entitle the plaintiff to a judgment reforming the contract. A prayer for such relief was not necessary if the facts alleged were sufficient.
¶2The facts offered to be proved, and rejected were such as tended to establish the allegations in the complaint. If, therefore, the plaintiff was entitled to a judgment reforming the contract upon the complaint he was improperly nonsuited.
¶3It was held in Marquat v. Marquat, 12 N. Y. 336, that the plaintiff was entitled to whatever relief the facts alleged and proved entitled him to, whether legal or equitable, and all allegations not relevant to such cause of action were irrelevant and did not impair the cause of action.
¶4A case being made for a reformation of the contract, the plaintiff was improperly nonsuited.
¶5It is not necessary now to decide whether the court cannot, having acquired jurisdiction of the equitable cause of action, retain it and give judgment for the damages should any be proved, but I confess I can perceive no reason why it may not be done if set out in the complaint as a second cause of action. 2 Wait’s Pr. 201.
¶6The judgment is reversed and a new trial ordered before another referee, the costs to abide the event.
¶7Judgment reversed and new trial ordered.