#### Jeremiah Cumber, Respondent, *against*Louis N. Schoenfeld, Appellant.

(Decided January 5th, 1891.)

A complaint, setting forth- a cause of action for a malicious prosecution only, alleged, that-plaintiff was arrested therein under a warrant. At the trial it appeared, on cross-examination of defendant’s witnesses, that the arrest was made without a warrant. *Reid,*that granting leave to plaintiff to amend his.complaint by adding a cause of action for false imprisonment, . thereby introducing a new cause of action, was error, for which, though no. exception.thereto was taken,, a judgment for plaintiff should be reversed.

Appeal from a judgment of. this court entered on. the verdict of a jury and from an order denying a motion for a new trial.

The facts are stated in the opinion.

*Christopher*Fine, for appellant.

•*Jacob Fromme,*for- respondent.

Pryor, J.

Appeal from a judgment for plaintiff on a’verdict and from an order denying a motion for a new trial.

The complaint exhibits but a single cause of action, and that is strictly, and exclusively for malicious prosecution. Plaintiff rested upon proof of a right of recovery for malicious prosecution only; but, having elicited on cross-examination of defendant’s witness, that the arrest was without a warrant (although his complaint expressly alleged that the arrest was under a warrant), plaintiff moved, at the close of the case, to amend the complaint to conform to the proof. The motion was granted, and although no amendment was actually made, it is clear beyond controversy that the amendment moved for and allowed, was the addition to the complaint of a cause of action for false imprisonment. The amendment was so regarded by counsel and by the court; and, in the charge, *455the case was expressly submitted to the jury as authorizing a recovery as well for false imprisonment as for malicious prosecution.

Upon proper objection made at the time, the trial judge would undoubtedly have refused to permit the amendment. That it is improper to permit at the trial a new cause of action to be introduced into the complaint, is apparent upon the « terms of the Code as well as by *the*uniform course of adjudication (Code Civ. Pro. § 723; *Price*v. Brown, 98 N. Y. 388, 393; *Reeder*v. Sayre, 70 N. Y. 181; *Harris*v. *Tumb*ridge, 83 N. Y. 92, 97 ; *Bockes*v. Lansing, 74 N. Y, 437; *Baldwin*v. Rood, 1 N. Y. Supp. 713, 17 N. Y. St. Rep’r 517; Buffalo, *etc., Ferry Co.*v. *Allen,*12 Civ. Pro. Rep. 64).

If it be answered that no exception was taken by defendant to the allowance of the amendment, the reply is, that, to authorise a review by the General Term, a formal exception is not indispensable *(Maier*v. *Homan,*4 Daly 168; *Mandeville*v. *Marvin,*30 Hun 282, 287, 289; *Standard Oil, etc., Co. v. Amazon Ins. Co.,*79 N. Y. 506, 510; *Hamilton*v. *R. R. Co.,*53 N. Y. 25, 27; *Lattimer*v. *Hill,*8 Hun 171; *Ackart*v. *Lansing,*6 Hun 476).

The case, then, was litigated throughout as an action for malicious prosecution and for nothing else; and it was not until both parties had rested and the summing up about to begin, that defendant intimated a claim to recover for false imprisonment. The fundamental condition of recovery in such an action, is proof by plaintiff of the absence of probable cause for his prosecution ; and it is impossible to say what would have been the determination of the jury upon it had it been submitted to them as a separate and distinct question. Nay, as the case was, in fact, submitted to the jury, we cannot say ■ but that they did not pass upon the question at all; for, in express terms, the court charged that “if the plaintiff shows that he has been illegally arrested or detained, that makes out his cause of action.” With such an instruction, the verdict might well have proceeded upon the illegal arrest alone, although the jury had found for defendant on the issue of probable cause; and so the effect of interpolating a new *456cause of action, at the close of the case, becomes sufficiently ' manifest. ;

If it be said that no harm accrued to defendant by allowing a recovery for false imprisonment, because that .ground of action was established by clear and incontrovertible proof, we answer that, at all events, the defendant should have had a fairer opportunity to contest the fact of the illegality of the arrest, than was afforded him by no'tice of an issue as to the fact given him.for the first time after the close of the case.

We think, in the interests of justice, a new trial should be awarded, ‘costs to abide the event. •

J. F. Daly, Ch. J., and Bischoff, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.