
    Harold L. Meyers, Plaintiff, v. Abraham Teitelbaum et al., Doing Business as Fortune Lamp Co., Defendants.
    Supreme Court, Special Term, Kings County,
    October 15, 1959.
    
      
      Morton L. Kimmelman for plaintiff.
    
      I. J. Kulick for defendants.
   Benjamin Brenner, J.

Motion to amend complaint for breach of an oral agreement to include an additional cause based on quantum meruit.

Plaintiff, a lamp stylist, originally alleged an oral agreement with the defendants, lamp manufacturers, pursuant to which he claims to be entitled to a percentage of defendants’ net sales for designing a line of modern lamps and an exclusive option to become the sole national sales distributor for a percentage of the gross sales. He further alleged a breach of the oral agreement and that there is due and owing to him the sum of $42,575.

Plaintiff now seeks to amend the complaint in order to add a second cause based on quantum meruit, for the fair and reasonable value of his services and to increase the amount of damages. Defendants having interposed the defense that plaintiff’s claim is barred by the Statute of Frauds, contend that the plaintiff may not add the quantum meruit theory or recover thereon in the event he is not entitled to recover on his cause for breach of contract — a contention which is without merit (Smith v. Kilpatrick, 305 N. Y. 66).

Amendments of pleadings are liberally allowed to correct a mistake, omission, irregularity or defect in the pleadings. (Civ. Prac. Act, § 105.) The parties may so shape their pleadings as to litigate all questions affecting their rights where none of them is materially prejudiced (Newman v. Goldberg, 250 App. Div. 431) and, in the absence of prejudice, amendment as to the ad damnum is permissible. (Nathanson v. Lutheran Hosp. Assn., 3 Misc 2d 540.)

The rights of the defendants not being materially affected or prejudiced by the proposed amendment, the motion is granted; the proposed amended complaint to be served within 5 days following service of a copy of an order herein with notice of entry, the defendants shall serve their amended answer within 20 days thereafter.

Settle order on notice.  