Opinion
February 21, 1949.
In an action to recover damages for personal injuries, property damage, medical expenses and loss of services, appellants alleged in their complaint that an automobile, operated by appellant Joseph Berkenstat, in which appellant Pauline Berkenstat was riding as a passenger, was in collision with the motor vehicles owned by respondents, and that such collision was caused by respondents' negligence. In their bill of particulars they alleged that respondents' automobiles were so operated as to cause them to collide, and thereafter to strike appellants' automobile, which was parked at the time of the collision. On the trial, appellants' testimony tended to establish that appellants' automobile was not parked, but was in motion, and that it had been struck from the rear by a truck owned by respondent Oliver, and thereby had been caused to collide with the automobile owned by respondent Rabkin, who, appellants claimed, had caused the collision by negligently opening the door of his parked car and attempting to alight in front of appellants' automobile. Appellants sought, after respondents had moved to dismiss the complaint, to amend the pleadings to conform to the proof, which had been admitted without objection. Their motion was denied and the complaint was dismissed at the close of appellants' evidence, because of the variance between the pleading and the proof. Judgment entered upon the dismissal, insofar as it is in favor of respondent Rabkin, unanimously affirmed, with costs. The granting or refusal of the amendment requested was discretionary (Civ. Prac. Act, § 434; Rules Civ. Prac., rule 166), and the trial court was not required to permit an amendment against respondent Rabkin which radically changed the theory upon which recovery was sought against him. ( Walrath v. Hanover Fire Ins. Co., 216 N.Y. 220; Dexter v. Ivins, 133 N.Y. 551; Schneiderman v. Mother's Friend's Wet Wash Laundry, 230 App. Div. 197; Spies v. Lockwood, 40 App. Div. 296.) Insofar as the judgment is in favor of respondent Oliver, it is reversed on the law and the facts, without costs, the action is severed, and a new trial granted. With respect to respondent Oliver, the amendment requested involved no substantial change in the theory upon which plaintiffs sought recovery against him and, in our opinion, the denial of the motion to conform the pleadings to the proof was an improvident exercise of discretion, particularly since evidence supporting the theory upon which the case was tried was admitted without objection, and no claim of surprise was made when the amendment was sought. Although the motion to amend did not specify the precise amendment of the pleadings desired, there was no misunderstanding by counsel, or the trial court, as to the amendment which appellants sought. Nolan, P.J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.