Opinion
May 15, 1944.
Present — Carswell, Acting P.J., Johnston, Adel, Lewis and Aldrich, JJ.
Action to recover damages for injuries suffered by the infant plaintiff while a patron in the defendant's roller skating rink. Appeal by the infant plaintiff and cross appeal by the defendant from a resettled order denying defendant's motion to dismiss the complaint, but granting its motion to set aside the verdict in favor of the infant plaintiff and directing a new trial. Order modified on the law and the facts by striking therefrom the second and third ordering paragraphs and inserting in place thereof a provision denying the motion to set aside the verdict and for a new trial, and reinstating the verdict. As thus modified, the order insofar as appealed from, is unanimously affirmed, with costs to appellant-respondent. After the submission of the case to the jury, the court was without power to change its ruling, made at the beginning of the trial, on the motion to amend the complaint to conform to the proof, so as to sustain the admissibility of testimony adduced by the plaintiff. ( Gottlieb v. Dole, 109 App. Div. 583, 585.) The granting of the motion to amend the complaint to conform to the proof under rule 166 of the Rules of Civil Practice, was proper in the absence of any claim by the defendant of surprise or prejudice at that time. ( Weaver v. Scripture, 125 Misc. 741, 746, affd. 214 App. Div. 852; Molloy v. Village of Briarcliff Manor, 217 N.Y. 577, 581.) The claim on defendant's cross appeal that no actionable negligence was established is without merit. ( Schweiger v. Empire Rollerdrome of Brooklyn, Inc., 265 App. Div. 867. )