Hammer v. Independent Lamp & Wire Co.

BIJUR, J. [1, 2] I am of opinion that the complaint fails to state facts sufficient to constitute a cause of action (Automatic Co. v. Twisted Wire Co., 159 App. Div. 656, 660, 144 N. Y. Supp. 1037), and that, [745] a motion to dismiss the same on that ground having been made at the opening of the trial and due exception taken to its denial, the learned judge below had no power to allow an amendment attempting to plead the omitted facts under the guise of “conforming the pleadings to the proofs” (Block v. Third Ave. R. R. Co., 60 App. Div. 191, 69 N. Y. Supp. 1107; Wheeler v. Hall, 54 App. Div. 49, 53, 66 N. Y. Supp. 257; Fiorito v. Interurban Street Ry. Co., 48 Misc. Rep. 614, 95 N. Y. Supp. 528). The judgment should be reversed, with costs to the appellant, and the complaint dismissed, with costs. PHILBIN, J., concurs.