Zboynski v. Brooklyn City Railroad

Yah Wyok, J. The plaintiff alleged in the complaint that while defendant’s car was at a standstill and he was in the act of entering the same by way of the front platform, the driver thereof “ negligently and carelessly, and without giving the plaintiff any warning or notice, started said car suddenly and violently, throwing plaintiff from said car against the wall of the carhouse ” and injured him. There was a total failure to prove this allegation. The plaintiff himself, when called to tell how the accident occurred, testified that while he was on the first step of the front platform, in the act of getting on the car, which was standing still, the driver thereof pushed him in his breast with his hand off the car against the wall. This testimony was admissible as a part of the transaction resulting in the accident complained of, and also for the purpose of negativing the cause of action alleged. The cause of action alleged was one for negligence of the driver; the one proved was for an assault upon a passenger by the driver. This point was raised by defendant’s request to charge that, unless the plaintiff was thrown from the car by reason of its being started suddenly, as alleged in the complaint, he cannot recover. This request was refused 'and defendant excepted. [8] After the jury had retired the court allowed the complaint to he amended by setting up the cause of action for the assault. The question for our consideration is not whether such amendment can be made at Special Term on notice, but whether it can be made at the trial of the case. There was a total failure in its entire scope to prove the cause of action alleged. Code Civ. Proc. § 531. The court, upon the trial, is not authorized to allow an amendment which substantially changes the claim or defense (id. § 723), and the amendment was not only a substantial change of the claim, but was the substitution of another cause of action for the one pleaded, and that is forbidden by the law at the trial, notwithstanding the broad discretion confided to courts in the matter of liberal amendments. Hall v. U. S. Reflector Co., 30 Hun, 375 ; Cumber v. Schoenfeld, 12 N. Y. Supp. 282 ; Reeder v. Sayre, 70 N. Y. 181 ; Southwick v. First National Bank, 84 id. 428 ; Price v. Brown, 98 id. 388 ; Dexter v. Ivins, 133 id. 551. Judgment and order must be reversed and new trial ordered, with costs to abide the event. Clement, Ch. J., concurs. Judgment and order reversed and new trial ordered, with costs to abide the event.