
    (109 App. Div. 514.)
    DUNHAM v. HASTINGS PAVEMENT CO.
    (Supreme Court, Appellate Division, First Department.
    December 8, 1905.)
    1. Pleading—Amendment.
    The court may permit a complaint stating a cause of action to recover under a contract to be amended, so as to state a cause of action to recover for a breach of the same contract.
    .2. Same—Terms.
    An amendment changing a complaint from one to recover on a contract to one to recover for breach of contract should only be allowed upon) condition that plaintiff pay all costs up to the date of the amendment.
    [Ed. Note.—For cases in' point, see vol. 39, Cent. Dig. Pleading, § 630.]
    Appeal from Special Term, New York County.
    Action by Edward R. Dunham against the Hastings Pavement Company. From an order allowing plaintiff to serve an amended complaint, defendant appeals.
    Modified.
    See 88 N. Y. Supp. 835.
    Argued before O’BRIEN, P. J., and PATTERSON, CLARKE, INGRAHAM, and HOUGHTON, JJ.
    Austen G. Fox, for appellant.
    Samuel Untermyer, for respondent.
   INGRAHAM, J.

I think the court below was justified in allowing the plaintiff to serve an amended complaint. »While the form of the second cause of action is changed from one to recover under the contract to a cause of action to recover for a breach of the same contract, the basis of the action is upon the contract, and the liability of the defendant depends upon its obligation thereunder. It having been determined that the right of the plaintiff to recover under the second cause of action must be based upon a breach of the contract by the defendant, it was proper for the court to allow an amendment to the complaint, so as to present the questions at issue. The court had power to make such an amendment whether, strictly speaking, a new cause of action was or was not alleged. We think that such an amendment, however, should only be allowed upon condition that the plaintiff should pay all the costs of the action up to the date of the amendment; and the order appealed from should be modified, requiring the payment of such costs as a condition for allowing the plaintiff to serve the amended complaint.

The order appealed from should therefore be modified accordingly, and, as modified, affirmed, without costs of this appeal. All concur.  