
    Benjamin N. Ross, Appellant, v Richard L. Markham, Respondent.
   — Order unanimously reversed on the law without costs, motion granted, cross motion denied and complaint reinstated. Memorandum: Plaintiff sued defendant for the unauthorized sale of race horses, which plaintiff alleged that he owned. Supreme Court erred in granting defendant summary judgment. There is an issue of fact concerning ownership of the horses in question. Supreme Court also erred in denying plaintiff’s motion to amend the complaint to allege that the Foal Papers indicate that plaintiff, or his wife as his nominee, owns the horses. Leave to amend shall be freely given (CPLR 3025 [b]; Fahey v County of Ontario, 44 NY2d 934) and defendant will not suffer surprise or prejudice by the amendment since defendant has possessed the Foal Papers since commencement of the action. There is no support in the record for plaintiff’s request that this case be remanded to a different Trial Judge. (Appeal from Order of Supreme Court, Chautauqua County, Ricotta, J. — Summary Judgment.) Present — Doerr, J. P., Green, Pine, Lawton and Davis, JJ.  