#### John H. Cody and Benjamin F. McCaulley, Composing the Firm of Cody & McCaulley, Respondents, *v.*James W. Dickinson, Appellant.

Second Department,

November 21, 1913.

Pleading — contract to move building and obtain right of way — variance between pleading and proof — amendment.

Where the complaint in an action for breach of contract under which the defendant was to move separate sections of a building to other locations, alleges that he agreed to furnish all rights of way that might be necessary for the removal of the sections through any and all “streets and highways ” of the village where the property was situated, the plaintiff cannot recover on proof that, two of the sections having been properly moved, the defendant failed to obtain the consent of a private owner across whose land the plaintiff desired the last section to be moved instead of over a street or highway.

An application for any amendment to the complaint so as to justify a recovery on the facts aforesaid must be made to the Special Term, where terms can be imposed.

Appeal by the defendant, James W. Dickinson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 25th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of April, 1913, denying defendant’s motion for a new trial made upon the minutes.

*Charles Fuller [Moses Ely*with him on the brief], for the appellant.

*Percy L. Housel [Robert W. Duvall*with him on the brief], for the respondents.

Burr, J.:

Plaintiffs seek to recover damages for breach of a contract with defendant to remove in three separate sections a large building situated in the village of Port Washington to three other locations in said village. The complaint alleged that by the contract, which was an oral one, defendant “agreed to *235furnish any and all rights of way that might be necessary for the removal of said sections of said building through any and all *streets*and *highways*of said Village of Port Washington,” and further alleged that on or about January 15, 1910, defendant broke said contract by refusing to obtain “a right of way necessary for the removal of the third and last section of said building *over said Jefferson*Street.” Upon the trial it appeared that two sections of the building had been removed, but because it was more convenient for plaintiffs so to do they had moved the last section upon private property instead of through the street, and that to complete the work it became necessary to remove a tree thereon. The owner of said land refused -to permit such removal unless paid the sum of twenty-five dollars therefor. When this evidence was offered it was objected to as not within the pleadings, and thereupon plaintiffs moved to amend the complaint, and the court said: *“*I will allow him to amend the pleadings to conform to his proof.” No formal amendment was actually made. Whether the court possessed power to grant such amendment at the trial we need not now determine, for the only proof which had been offered at the time that the motion was granted as to any obligation on defendant’s part to secure rights of way was an executed agreement to obtain the consent of a street surface railroad company to permit the first of said sections to be moved across its tracks. We have, then, a complaint alleging an obligation on defendant’s part to obtain rights of way through the streets and highways of said village, evidence of an agreement performed by defendant to obtain the consent of a railroad company to cross its tracks, and recovery upon the theory that defendant had failed to obtain consent of an owner of private property to the removal of a tree which stood thereon in the route selected by plaintiffs for their own convenience. Unless we are to pay no attention to pleadings such recovery cannot be sustained. If a party can allege one cause of action and then recover upon another his complaint will serve no useful purpose, but rather ,to ensnare and mislead his adversary. *(Southwick*v. *First Nat. Bank of Memphis,*84 N. Y. 420; *City of New York*v. *Knickerbocker Trust Co.,*121 App. Div. 740.) If plaintiffs desire to amend their complaint application there*236for may be made to the Special Term for that purpose, when proper terms and conditions of such amendment can be imposed. *(Audley*v. Townsend, 131 App. Div. 79.)

The judgment and the order denying a motion for a new trial must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Oarr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.