Opinion
June 12, 1950.
In an action to recover for damage to real and personal property alleged to have been caused by the negligence of defendant Colony Fuel Oil Company, plaintiffs appeal from a judgment dismissing the complaint at the close of their case. Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. It was an improvident exercise of discretion to deny the motion by plaintiffs to amend their complaint to conform to the proof. ( Berkenstat v. Oliver, 275 App. Div. 679.) The plaintiffs did not seek to allege any additional acts of negligence. By the amendment they did not ask to eliminate the allegation that the tank overflowed. They sought to allege that by reason of the negligence of defendants in causing the tank to overflow, it burst and the oil which ignited came from the opening in the tank instead of from the overflow, as had been alleged. The amendment, if granted, would not result in a new cause of action. Whether the impleaded party defendant was an independent contractor was for the jury to determine. ( Johnson v. R.T.K. Petroleum Co., 289 N.Y. 101.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.