The City of New York, Respondent, v. The Knickerbocker Trust Company, Appellant

The City of New York, Respondent, v. The Knickerbocker Trust Company, Appellant. First Department, November 8, 1907. Trial—nuisance—amendment of pleading denied. When thé complaint in an action to abate a nuisance, consisting of structures -encroaching on a city street, " seeks only the removal of so. much of the encroachment as extends beyond the stoop line, the. court at the close of' the trial should not permit an amendment so as to include structures within the stoop line among those sought to be removed. Such' amendment in effect incorporates a new cause of action. ■ Appeal by the defendant, The Knickerbocker Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of-the county of New York on the 6th day of December, 1906, upon the decision of the court rendered after a-trial at the New York Special Term ; also from an order entered in said clerk’s office on the 4th day of December, 1906,. amending the complaint herein nunc pro tunc as of the date of trial; also from an order entered in said clerk’s office on the 6,th day of December, 1906, denying the defendant’s motion to resettle said order amending the complaint, and also from an order entered in said clerk’s Office on the 7tli day of December, 1906, denying the defendant’s motion for leave to serve an answer to the amended, complaint. Julien T. Davies, for the appellant. Theodore Connoly, for the respondent. [MAJORITY — Scott, J. ,:] Scott, J. ,: 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 confo.nn 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 uot it falls fairly within the definition- of á lC stoop.” That question was not presented by the complaint as originally framed, and should not he passed upon until the defendant has had f ull opportunity to-meet it.upon proper pleadings. The judgment will, therefore, be so modified as to confine its ojieration 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 ñuño %>ro tuno, 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. . '