May 5, 1947.
In an action for a separation, on the grounds of abandonment and defendant's neglect and refusal to provide for plaintiff, the Special Term, after trial, amended the complaint to conform to the proof, and awarded judgment to respondent, on the ground of cruel and inhuman treatment. Judgment reversed on the law, and a new trial granted, without costs. The trial did not proceed on the theory upon which respondent recovered judgment. Evidence which was received, without objection by appellant, as to the circumstances surrounding the separation of the parties was relevant to the cause of action alleged. There is, consequently, no room for inference from appellant's failure to object, that he intended to consent to the substitution and litigation of a cause of action other than the one alleged. A party is entitled to be informed by his adversary what new cause of action or defense is to be interjected into the trial and should have fair opportunity to make objection and to meet the new issues presented. ( Romeyn v. Sickles, 108 N.Y. 650; Wirth v. Wirth, 184 App. Div. 643; Copeland v. Hugo, 212 App. Div. 229; Geier v. Pacific Mutual Life Ins. Co., 229 App. Div. 811; Way v. Prudential Insurance Co. of America, 252 App. Div. 424.) The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions. Carswell, Johnston, Nolan and Sneed, JJ., concur; Hagarty, Acting P.J., dissents and votes to affirm.