
    Mary Adelman, Respondent, v. Frederick Fennell, George W. Fennell, William Sauer and Edward Henry Fennell, Individually and as Executors and Trustees Under the Last Will and Testament of George Fennell, Deceased, Appellants.
    (Supreme Court, Appellate Term,
    November, 1911.)
    New trial — Grounds — In general — Permitting withdrawal of election.
    Pleading — Motions relating to pleadings — Motion to compel election—-Between two causes of action — Withdrawal of election.
    In an action to recover damages for personal injuries against defendants individually and as executors, where the plaintiff at the beginning of the trial elects to proceed against the defendants as executors, it is error at the close of the evidence to permit the plaintiff to withdraw the election made at the opening of the ease and to allow him to proceed against the defendants individually for which á judgment in favor of the plaintiff should be reversed.
    Appeal by the defendants from a judgment in favor, of the plaintiff, rendered in the Municipal Court of the city of Hew York, borough of Manhattan, second district.
    Louis Diamant (Isaac Siegel, of counsel), for respondent.
    James B. Henney (Frederick Mellor, of counsel), -for appellants.
   Guy, J.

Defendants appeal from a judgment in favor, of plaintiff, rendered in an action brought to recover damages for personal injuries. The action was brought against the defendants individually and as executors. At the opening of the trial defendants moved that plaintiff be compelled to elect whether she would proceed against the defendants individually or as .executors, and plaintiff’s counsel, without objection, stated that on behalf of the plaintiff he elected to proceed against the defendants as executors and not individually. The trial then proceeded and, at the conclusion of plaintiff’s case, a motion was made to dismiss the complaint, which was denied, and an exception taken. Defendants’ counsel then introduced testimony on behalf of the defendants as executors, and at the conclusion of the'case renewed his motion to dismiss the complaint on the ground that no cause of action had been made out against the defendants as executors. Plaintiff’s counsel then asked leave to withdraw the election made at the opening of the case and to be allowed to proceed against the defendants individually, which application was granted, against defendants’ objection and exception, the defendants claiming surprise, and that, by plaintiff’s election at the beginning of the trial, defendants had lost the right to move to amend the answer so as to set up certain additional defenses to an action against the defendants individually. In permitting plaintiff to withdraw her election and to revive the action against the defendants individually, after the conclusion of the trial, against the defendants as executors, was an irregularity, prejudicial to the defendants, and constituted reversible error.

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

Seabury and Cohalan, JJ., concur.

Judgment reversed. .  