
    Josephine Leslie, Respondent, v. Norard Grover, Appellant.
    Fourth Department,
    May 5, 1909.
    Trial — amendment to- conform to proof—nonsuit on merits.
    Where a defendant does not raise the objection that there is a variance between the pleading and proof until the evidence is closed, and he has not been misled as to the nature of the' plaintiff’s claim and has given- evidence to meet it, the cotirt may grant an amendment to conform to the proof. But having granted the amendment and also having allowed the defendant to amend so as to plead the Statute of Frauds, it is error to dismiss the complaint upon the merits.
    Robson, J., and McLennan, P. J., dissented, with opinion.
    Appeal by the defendant, Norard Grover, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of September, 1908, reversing a judgment of the Municipal Court of the city of Buffalo in favor of the defendant, which dismissed the complaint, and directing á new trial in the Municipal Court.
    
      Edward C. Schlenker and Eugene L. Falk, for the appellant.
    
      Gordon F. Matthews, for the respondent.
   Kruse, J.:

No question was raised upon the trial until after the evidence was closed that there was a variance between the proof and the cause of action alleged in the complaint. There was no misapprehension by the defendant as to the precise nature of the plaintiff’s claim, and the defendant gave evidence to meet it. I think that under such circumstances the trial court properly permitted the complaint to be amended to conform to the proof (Martin v. Home Bank, 160 N. Y. 190, 198; Cullen v. Battle Island Paper Co., 124 App. Div. 113; Baumann v. Tannenbaum, 125 id. 770), but erred in granting the nonsuit and dismissing the complaint, and, therefore, the judgment was properly reversed at Special Term.

I think the order of reversal should be affirmed, with costs.

All concurred, except McLennan, P. J., and Eobbon, J., who dissented in an opinion by Bobson, J.

Robson, J. (dissenting):

The trial of this action was had in the Municipal Court of Buffalo before a judge of that court and a jury. Plaintiff’s complaint, as ■amended at the opening of the trial, alleged the sale and delivery by her to defendant, between specified dates, of goods, wares and merchandise amounting to $1,671.98, and payments by defendant to apply thereon at various times aggregating the sum of $1,541.54, “ leaving a balance of $130.44 due and unpaid to the plaintiff from defendant, for which she demanded judgment. Defendant’s answer was a general denial. Plaintiff failed on the trial to establish the sale and delivery of goods to defendant for the purchase price of which any balancé was due to her. But the evidence presented did tend to prove, as stated by the justice in his opinion delivered at Special Term on decision of the appeal from the judgment of the Municipal Court, that the defendant being indebted to Grimm Brothers in a sum exceeding1 $130.44, and Grimm Brothers then owing plaintiff $130.44, defendant at the request of Grimm Brothers promised to pay plaintiff $130.44 and plaintiff agreed to release Grimm Brothers from their liability for payment of that sum to her, and that in pursuance of this agreement plaintiff at the request of defendant gave Grimm Brothers credit as payment on their account with plaintiff for $130.44, and charged that amount tó defendant’s account with her, and Grimm Brothers’gave defendant credit for a like sum upon his account with them. Defendant’s evidence tended to disprove plaintiff’s contention. At the close of the evidence defendant moved for a dismissal of the complaint, one ground of the motion being that plaintiff had failed to establish the cause of action alleged in the complaint. . The court, at plaintiff’s request, then, over defendant’s objection and exception, permitted her to again amend the complaint by substituting as the statement of her cause of action “ that on or about the 9th day of .September, 1905, said indebtedness to the amount of $130.44 was assumed by the defendant in this action and he agreed to pay the same and directed for a valuable consideration the '.transfer of such amount and the credit for that amounrxo the account of Grimm Brothers.and charge the same to the defendant.” Defendant formally objected to the granting of the amendment on the ground that the court had no power to permit such amendment at that time, and duly excepted to ' the ruling of the court permitting the amendment. Then, in terms reserving his rights on exception to the ruling, he was permitted by the court to amend his answer and plead as a defense to the cause of. action, alleged in the complaint as then amended, the Statute of ‘ Frauds %nd that such agreement as then pleaded in the complaint would have to be in writing, and thereupon moved for a dismissal of the complaint. The court permitted the amendment to the answer, and then said: “ The motion for nonsuit and dismissal of the complaint on the merits is granted.” Judgment, as then directed by the court, was thereupon entered in favor of defendant.

This last amendment to plaintiff’s complaint allowed by the court substantially changed plaintiff’s claim, constituting the cause of action alleged in her complaint. Indeed, it substituted a new cause of action entirely different from that originally pleaded. (Cox v. Halloran, 64 App. Div. 550.) Such an amendment, it seems, is’ beyond the power of the court to grant on the trial if objection thereto is duly taken. (Freeman v. Grant, 132 N. Y. 22, 29.) It follows that the allowance of amendment of the complaint was unwarranted, and that defendant was entitled to a nonsuit at the close of all the evidence. The disposition of the case made by the court after the allowance of the amendments to the complaint and answer was also unauthorized. If the issues are to be regarded as those presented by the pleadings as amended, then there was plainly a question of fact for the determination of the jury as the learned court at Special Term in his opinion points oiit. If we treat the disposition of the case as made upon the pleadings and evidence as they stood Before the amendment, the dismissal of the complaint on the merits was improper. The 6ourt, in" jury cases, should not direct dismissal of a complaint upon the merits, and such direction seems to be unauthorized. (Harris v. Buchanan, 100 App. Div. 403.) Plaintiff having entirely failed to establish the cause of action alleged in her complaint, a direction of judgment of nonsuit and dismissal of the complaint was proper; or, if defendant had moved for such direction, a verdict might have been directed. The order of the Special Term should be reversed and the judgment of the Municipal Court modified by striking therefrom the provision dismissing the complaint on the merits and affirming the judgment as one of nonsuit and dismissal of the complaint only.

McLennan, P. J., concurred.

Order affirmed, with costs. Hew trial to be had in Municipal Court on May 17, 1909, at.ten o’clock in the forenoon.  