Maresco v. Kaufman Dyeing & Finishing Works, Inc.

224 A.D. 705

Opinion

Per Curiam.

We think an amendment should have been allowed as of course to conform the pleading to the cause of action based upon the testimony of the witness Spotkob. While responsibility for this situation rests primarily upon the vacillating course of the plaintiff’s attorney in pressing and withdrawing motions for amendment, we feel that in the interests of justice a jury should be allowed to pass upon this case on its merits. On a new trial an amendment to the complaint should be permitted to conform with the present theory of the case, of which the defendant was thoroughly advised, and the case disposed of on its merits. The judgment is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event. Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ. Judgment reversed and new trial ordered, with costs to the appellant to abide the event.