¶1The pleadings were oral but the return recites that the plaintiff “ complained of the defendant for damages of property,” and the bill of particulars reads: “ Plaintiff claims damages in the sum of $150 on account of the destruction and withholding of a set of plans, drawings, etc., representing a Mausoleum,” etc. This is clearly a statement of a cause of action in tort.
¶2When the cause of action is ex delicto, the plaintiff may waive the tort and sue in assumpsit (Slade v. Montgomery, 53 App. Div. 343, 345, citing Rothschild v. Mack, 115 N. Y. 1), but the plaintiff who has elected to sue in tort cannot recover in assumpsit. “ The principle still remains that the judgment to be rendered by any court must be ‘ secundum allegata et probata.’ ” (Neudecker v. Kohlberg, 81 N. Y. 296, 301.)
¶3The plaintiff clearly elected to sue in tort, but the recovery was upon the ground of an implied contract. His counsel says: “ The court, exercising its discretion, evidently considering a quantum meruit, allowed a total damage of ($100.00) one hundred dollars.” Counsel for defendant pointed out the error in his motion to dismiss the complaint at the close of the plaintiff’s case and again at the close of the entire case, and duly excepted to the denial of his motion.
¶4The judgment should be reversed.
¶5All concurred.
¶6Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.