
    Philip J. Lanzatella, Appellant, v. Lewis G. Tumia et al., Copartners Doing Business as Norton Plumbing Co., Respondents.
   Order reversed on the law and facts, with $10 costs and disbursements, and motion granted, with $10 costs. Memorandum: In the absence of any showing of prejudice to the defendant we feel that the court erred in denying plaintiff’s motion to amend the complaint to set up a third cause of action based upon fraud. The motion made following a mistrial was returnable before the same judge who presided at that trial. Since the court was familiar with the facts and the reasons which prompted the making of the motion, we conclude that the denial was an improvident exercise of discretion. All concur, except Wheeler, J., who dissents and votes for modification and affirmance, in the following memorandum: Upon his application to amend his complaint to add a third cause of action founded upon facts within his knowledge at the time the original complaint was served, plaintiff failed to proffer any excuse why the proposed amended cause of action was not included in his earlier pleading. Nor does there appear in the record any reason for this delay. (Quarantiello v. Grand Trunk Ry. Co., 145 App. Div. 138; Rodman Improvement Co. v. Krabo, 185 App. Div. 882.) Under these circumstances the Special Term did not abuse its discretion in denying the motion. However in view of the fact that the record reveals nothing indicating a prejudice to the adverse party, the order should be modified to provide that it be without prejudice to another application by plaintiff upon proper papers to amend, if he be so advised. (Appeal from an order denying plaintiff’s motion to amend his complaint.) Present — McCurn, Vaughan, Kimball, Piper and Wheeler, JJ. [See post, p. 853.]  