
    David F. Thompson, William Thompson and James Thompson Bryson, Respondents, v. Hayman Benowitz, Individually, and as Sole Surviving Member of the Firm of Zviebel & Benowitz, Appellant.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Pleading—Amendments—Amendments by leave of court: Time for amendments — Waiver of objection: Subject-matter of amendment — Consolidating causes of action.
    Where a complaint states two separate causes of action, to one of which the defendant has interposed the Statute of Frauds as a defense, it is error to permit an amendment of the complaint, at the trial, so as to consolidate the two causes of action in one, upon a claim that both arise out of the same entire contract, where defendant claims surprise.
    When such a motion is granted over defendant’s objection and exception, he may rely on his exception without abandoning the trial.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiffs, after a trial before the court and a jury, and also from an order denying a motion for a new trial.
    
      Spiro & Wasservogel (Isidor Wasservogel, of counsel), for appellant.
    Blumenstein & Blumensteil (Edwin Blumensteil, of counsel), for respondents.
   Dayton, J.

Plaintiffs pleaded two distinct causes of action, as to one of which defendant pleaded the Statute of Frauds. On the trial, and against objection, the court permitted plaintiffs to amend “ so as to set forth that the contract as I have set forth in the first cause .of action and the contract as I have set forth in the second cause of action was one and the same entire contract.” Defendant properly claimed surprise. ¡Respondents contend that this amendment was a technicality and immaterial, but cite no authorities. We are of opinion that, under well established rules, the defendant was entitled, under the pleadings, to attempt to establish his defense of the Statute of Frauds as to one of the separately stated causes of action and could not be deprived of that right by the amendment granted, which presented different facts from those alleged in the complaint. At the close of plaintiffs’ case defendant moved to dismiss and again called attention to said defense of the Statute of Frauds. The motion was denied and defendant proceeded with his case. The court charged the jury without any. reference to the Statute of Frauds. The verdict was for the full amount of plaintiffs’ claim on their amended complaint, from which defendant appeals. The' issues having been thus changed, despite objection, I think defendant could rely upon his exception without abandoning the trial. Indeed the plaintiffs, by proceeding, took the risk of that exception.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Lehman, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  