
    Jeremiah Cumber, Resp’t, v. Louis N. Schoenfeld, App’lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed January 5, 1891.)
    
    Pleading—Amendment—Malicious prosecution—False imprisonment.
    The action was brought for malicious prosecution, and was tried on that question alone, but plaintiff having elicited from a witness, on cross-examination, that the arrest was without a warrant, moved, at the close of the case, for an amendment of the complaint to conform to the proof, Which motion was granted and the case submitted to the jury as authorizing a recovery as well for false imprisonment as for malicious prosecution. Reid, error. ,
    Appeal from judgment in favor of plaintiff, entered on verdict,- and from order denying motion for a new trial.
    • Michael Jacobs (Christopher Fine, of counsel),for app’lt; Albert I. Sire (Jacob Fromrne, of counsel), for resp’t.
   Pryor, J.

Appeal from a judgment for plaintiff, on a verdict, and from an order denying a motion for a new trial.

The complaint exhibits but a single cause of action, and that is strictly and exclusively for malicious prosecution. Plaintiff rested upon proof of a right of recovery for malicious prosecution only; hut,-having elicited, on cross-e'xamination of defendant’s witness, that the arrest was without a warrant (although his complaint expressly alleged that the arrest was under a warrant), plaintiff moved, at the close of the case, to amend the complaint to conform to the proof. The motion was granted, and although no amendment was actually made, it is clear, beyond controversy, that the amendment moved for and allowed was the addition to the complaint of a cause of action for false imprisonment. The amendment was. so regarded by counsel and by the -court; and, in the charge, the case was expressly submitted to the jury as authorizing a recovery as well for false imprisonment as for malicious-prosecution.

Upon proper objection made at the time, the trial judge would undoubtedly have refused to permit the amendment. That it is improper to permit at the trial a new cause of action to be introduced into the complaint is apparent upon the terms of the Code as well as by the uniform course of adjudication. Code Civ. Pro., § 723 ; Price v. Brown, 98 N. Y., 388, 393; Reeder v. Sayre, 70 id., 181; Harris v. Tumbridge, 83 id., 92, 97; Bockes v. Lansing, 74 id., 437; Baldwin v. Rood, 17 N. Y. State Rep., 517; Buffalo, etc., v. Allen, 12 Civ. Pro., 64; 5 N. Y. State Rep., 146.

It it be answered that no exception was taken by defendant to the allowance of the amendment, the reply is, that to authorize a review by the general term, a formal exception is not indispensable. Maier v. Homan, 4 Daly, 168; Madeville v. Marvin, 30 Hun, 282, 287, 289; Standard Oil Co. v. Ins. Co., 79 N. Y., 506, 510 ; Hamilton v. R. R. Co., 53 id., 25, 27: Lattimer v. Hill, 8 Hun, 171; Ackart v. Lansing, 6 id., 476.

The case, then, was limited throughout as an action for malicous prosecution and for nothing else; and it was not until both parties had rested and the summing up about to begin, that defendant intimated a claim to recover for false imprisonment. The fundamental condition of recovery in such an action is proof by plaintiff of the absence of probable cause for his prosecution; and it is impossible to say what would have been the determination of the jury upon it had it been submitted to them as a separate and distinct question. Hay, as the case was submitted to the jury, we cannot say but what they did not pass upon the question at all; for, in express terms, the court charged that, “ if the plaintiff shows that he has been illegally arrested or detained, that makes out his cause of action.” With such an instruction, the verdict might well have proceeded upon the illegal arrest alone, although the jury had found for defendant on the issue of probable cause; and so the effect of interpolating a new cause of action at the close of the case become, sufficiently manifest.

If it be said that no harm accrued to defendant by allowing a recovery for false imprisonment, because that ground of action was established by clear and incontrovertible proof, we answer: that, at all events, the defendant should have had a fairer opportunity to contest the fact of the illegality of the arrest than was afforded him by notice of an issue as to the fact given him for the first time after the close of the case.

We think, in the interests of justice, a new trial should be awarded, costs to abide the event.

Bischoff, J., concurs.  