
    Morris Danzig, Trading as Morris Danzig & Company, Respondent, v. Saliba T. Baroody, Appellant.
    First Department,
    November 18, 1910.
    Pleading—amendment of complaint at trial to change date of sale — terms — when defendant should be allowed to amend answer and move for change of venue.
    A plaintiff moving at the opening of a trial to amend a complaint for work, labor and services performed and materials furnished so as to change the date upon which said services are alleged to have been rendered and materials furnished should be required, if objection to the amendment be made, to present an affidavit or make a statement showing why the correct date was not stated in the original complaint, or how the error, if any, occurred and when it was discovered.
    Where in opposition to such amendment the defendant, who had merely pleaded a general denial, shows that the goods sold on the date set out in the amendment were returned to the plaintiff on the ground that they did not correspond with samples and that had the original action been brought on that sale the defendant would have pleaded that fact as a defense and also moved for a change of venue for the convenience of witnesses, the court should not condition the amendment upon the payment of ten dollars costs, but should impose adequate terms and allow the defendant an opportunity to amend its answer and move for a change of venue.
    A defendant is not obliged to answer a cause of action differing from that alleged in the complaint.
    Where an error in pleading is discovered in time to permit a motion for relief at Special Term, that is the better practice and the parties should ordinarily be left to that remedy.
    Appeal by the defendant, Saliba T. Baroody, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of December, 1909, upon the verdict of jury rendered by direction of the court, and also (as stated in the notice' of appeal) from an order granting the plaintiff leave to amend the complaint.
    
      Nathan D. Larpham, for the appellant.
    
      Charles Eno, for the respondent.
   Laughlin, J.:

This action was commenced on the 14th day of September, 1907, and issue was joinéd by the service of an amended answer on the twenty-second day of October the same year. The cause of action stated in the complaint is to recover $156, the agreed price and reasonable value of “ work, labor and services ” performed and “ materials” furnished to the defendant at his special instance and request “ in the month of March, 1906.”

The material allegations of the complaint are put in issue by the answer. ‘ Plaintiff resides in the county of New York and conducts the business of manufacturing and selling clothing for men, and defendant conducted a retail clothing store at Geneva, N. Y.

The issues were brought to trial at Trial Term, Part 2, on the 10th day of December, 1909. After the case was opened, counsel for plaintiff moved to amend the complaint by changing the allegation of March, 1906, the date when the work, labor and services were alleged to have been performed and the materials were alleged to have been delivered, to March, 1907. He had given notice to counsel for defendant on the evening before that he would make such motion on the trial. No affidavit was presented or statement made to show why the correct date was not stated in the original complaint, or how the error, if it be an error, occurred or when it was discovered. This should be required where objection to the amendment is made, for otherwise carelessness in pleading will be encouraged. (Harrington v. Slade, 22 Barb. 161; Jacobs v. Mexican Sugar Refining Co., Lid., 115 App. Div. 499.) Counsel foi the plaintiff, in making the motion, said to the court: “I will show by the testimony that there has been but one transaction between the plaintiff and the defendant, and nothing more,” and stated that he had notified the attorney of record and counsel for defendant that he would “attempt” to amend the complaint “because of the typographical error,” and that he had told counsel “ at the beginning of the week ” and had yritten him a letter confirming the conversation. Counsel for the defendant, who practiced in New York county, thereupon stated to the court that he had been retained by the attorney for the defendant, whose affidavit he had; that the parties had had other transactions, and he held receipted bills for transactions in 1906; that in 1907 the defendant did buy some goods consisting of men’s clothing of a traveling salesman who represented the plaintiff; that the coats were to be double-breasted ; that the coats delivered on the order were single-breasted, and all of the goods were for that reason immediately returned by express; that the goods were sold by sample in Geneva, where the witnesses to. the sale and to the description of the goods received were, and that if the action had been brought on the transaction in 1907 the defendant would have pleaded these facts as a defense, and would have moved to change the place of trial; but that on the facts as pleaded a general denial was the only pleading required by the defendant.

The court thereupon granted plaintiff’s motion to amend on payment of ten dollars costs. Counsel for the defendant stated that his client was not prepared to meet the issue presented by the amendment, and that costs of the action to date should be allowed, and he refused to accept the costs awarded by the court, and duly excepted. The court thereupon directed that the bill, affidavits and letters “filed on this application to amend” be marked for identification. The bill was for goods bought by the defendant from “ Danzig & Eisenberg, Manufacturers of Clothing,” under date of November 6, 1905. It does not purport to be receipted or to relate to a transaction in 1906. The affidavits of the defendant and of his attorney fully sustained all of the statements made by his counsel, excepting that they did not show any transactions between the parties in the year 1906, or receipted bills therefor, and show that if the plaintiff should be allowed to amend by pleading on the transaction in 1907 it would be necessary for the defendant to serve an amended answer setting up his defense that the goods were sold by sample and were rejected and returned on the ground that they did not correspond therewith. The point is also taken in the affidavit that should the motion be granted it be on terms and on condition that the case go over the term in order that the defendant might move to change the place of trial for the convenience of witnesses which in that event he desired to do, and the names of the witnesses and the materiality of their testimony are set forth. One of the letters presented in opposition to the motion was from the defendant to the plaintiff, and stated that the goods received in March, 1907, had been shipped back on the ground that the coats were to be double-breasted, and those received were single-breasted.

The plaintiff was thereupon called and sworn, and he testified that in the month of November, 1906, at the defendant’s store at Geneva, N. Y., he sold the defendant a bill of goods by sample consisting of four dozen suits, embracing twenty-four suits of men’s clothing, to be delivered in the month of March, 1907; that the coats were to be made half single and half double.” He gave no testimony with respect to the shipment of the goods, and evidently relied on the admissions contained in the affidavits with respect thereto. It was not shown that there were no transactions between the parties in the month of March, 1906. Counsel for the defendant does not appear to have taken part in the trial, but it is not claimed that the judgment was taken by default.

We are of opinion that the court erred in allowing the amendment of the complaint without adequate terms and without affordng the defendant an opportunity to answer it as amended, and to m'ove for a change of the place of trial of the action. As the issues were framed the plaintiff could not recover on the sale and delivery of the goods in March, 1907. It is quite evident that the defendant was aware that the action was brought to recover for the goods delivered in March, 1907, and that might be given due weight in prescribing the terms to be imposed on allowing the amendment; but he was not obliged to attempt to answer a cause of action different from the one set forth in the complaint, and a general denial of the material allegations was a sufficient defense to the issue as tendered. The allegations of the complaint are too general to identify the transaction, and the plaintiff might have insisted on going to trial without amending the complaint, and might have attempted to establish the cause of action as alleged by showing the performance of any work or labor or the delivery of any material in March, 1906. The defendant could not affect, the rights of the plaintiff by pleading that the cause of action intended to be set forth in the complaint was one concerning the sale and delivery of goods, not in the month of March, 1906, but in the month of March, 1907, and thereupon proceed to set up his defense thereto. Nor could the defendant’s right to have the place of trial changed for the convenience of witnesses with respect to a cause of action for goods sold and delivered in March, 1907, be enforced against a complaint for work, labor and services performed and materials delivered in March, 1906. It appears that the question of inadequacy of terms on allowing the amendment was emphasized more on the trial and on the appeal than the inability of the defendant to protect his rights in view of the amendment; but, as has been seen, the defendant promptly rejected the goods, for which a recovery has been had, 'on the ground that they did not comply with the contract. It is, in view of the affidavits, a reasonable inference that the claim of the defendant that he had just cause for rejecting the goods is made in good faith. He should, therefore, have an opportunity to litigate that question. If it had been shown that the cause of action intended to be set up in the complaint related to the sale and delivery of goods in March, 1907, the trial court had authority to allow the amendment ; but where such an error is discovered ih time to permit a motion for the relief to be made at Special Term, that is the better practice,- and parties should ordinarily be left to that remedy. (Rhodes v. Lewin, 33 App. Div. 369; Cauchois v. Proctor, 1 id. 16 ; Kenney v. South Shore Natural Gas & Fuel Co., 126 id. 236.) No formal order was entered on granting the motion to amend.

The appeal from the order should, therefore, be dismissed and the judgment reversed and a new trial granted, with costs to appellant to abide the event, but without .prejudice to plaintiffs right to move to amend the complaint.

Ingraham, P. J., McLaughlin, Milleb and Dowling, JJ., concurred.

Appeal from order dismissed; judgment reversed and new trial granted, costs to appellant to abide event, without prejudice to plaintiff’s right to move to amend complaint. Settle order on notice.  