Opinion
November 8, 1907.
Julien T. Davies, for the appellant.
Theodore Connoly, for the respondent.
The action as originally commenced and as the complaint stood until after the trial had been completed, sought the removal only of so much of the defendant's steps on Fifth avenue and of the areaway on Thirty-fourth street as extended beyond the stoop line established by the ordinance of March 15, 1897. In so far as concerns these obstructions the question was settled, so far as this court is concerned, by the unanimous opinion delivered upon the affirmance of the interlocutory judgment overruling defendant's demurrer to the complaint, and nothing need be added to that opinion ( 104 App. Div. 225). To this extent the present judgment must be affirmed. We think, however, that the court erred in permitting the complaint to be amended after the trial so as to include among the structures complained of and sought to be removed the portico and columns erected and maintained by defendant within the stoop line. The power of the court, even after trial, to so amend a pleading as to conform it to the proof is well settled, but this power does not go so far as to permit the importation into the complaint of what is in effect a new cause of action. When such an amendment is sought the defendant is entitled to answer the new allegations and to be heard upon the issues thus raised. The inclusion of the porticos and columns in the complaint amounted to pleading a new cause of action. The question of the illegality of structures wholly outside the stoop line, and of those inside that line, but outside of the building line, rest upon quite different considerations. As to the first class, as was demonstrated in the former opinion of this court, their illegality is clear. As to the second there is involved the question as to the nature and character of the structure and whether or not it falls fairly within the definition of a "stoop." That question was not presented by the complaint as originally framed, and should not be passed upon until the defendant has had full opportunity to meet it upon proper pleadings. The judgment will, therefore, be so modified as to confine its operation to the structures outside the stoop line originally complained of, and as modified affirmed, without costs to either party, thus leaving it open to the plaintiff, if so advised, to attack upon a proper complaint the legality of the portico and columns.
The order allowing the complaint to be amended nunc pro tunc, and the order denying defendant's motion for leave to answer said amended complaint must be reversed.
PATTERSON, P.J., LAUGHLIN, HOUGHTON and LAMBERT, JJ., concurred.
Judgment modified as directed in opinion and as modified affirmed, without costs, and orders appealed from reversed. Settle orders on notice.