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August, 1898, leased the entire building and surrendered possession. Herrman did not assume to lease plaintiff's property to Stein or to confer any right concerning it, and had a distinct understanding with Stein that the right was reserved to enter at any time and remove any property left by tenants, and he had no knowledge that Stein contemplated removing the property. The defendant Stein was not served and did not appear. The verdict in favor of the defendant Herrman was directed upon motion of his counsel, made upon the grounds: (1) That the plaintiff had failed to establish a cause of action of any kind; (2) that the plaintiff's cause of action, if any, was not for conversion, but for breach of a contract of bailment, and that the sole cause of action pleaded in the complaint was one for conversion; (3) that the defendant's possession being originally rightful, a demand was necessary to make it unlawful, that such demand was a condition precedent to the maintenance of an action for conversion, and that none had been proved.

It appears that Herrman did not notify plaintiff that he had leased the premises to Stein, or request him to remove the property. We are not in accord on the question as to whether the notice to remove in the event that the premises should be leased was for the benefit of the defendant Herrman alone, or whether he owed a duty to the plaintiff to give such notice; but that is not material, because, if such duty existed, a breach thereof might give rise to a cause of action for damages for breach of the contract, but it would not constitute a conversion of the property. It is unnecessary to decide whether the facts give rise to any cause of action ex contractu, for, the complaint being in conversion, no recovery could be had without proof thereof. Wamsley v. Steamship Co., 168 N. Y. 533-540, 61 N. E. 896, 85 Am. St. Rep. 699. The defendant Herrman exercised no dominion over the property. In the exercise of his legal right to sell or lease the premises, he leased the entire building, but not its contents. The defendant Stein thus came into possession of the building, subject to the rights of the plaintiff. Clearly, the mere execution of a deed or lease of the premises, and surrender of possession thereof to another, does not render the owner liable in conversion for all the property of the tenants of the building, either as to tenants in possession and occupation, or as to those who have left some of their property temporarily. Peck v. Knox, 1 Sweeny, 311; Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492, 8 Am. Rep. 564; Wamsley v. Atlas Steamship Co., supra, and cases cited.

The contract by which the goods were left does not differentiate the case, considered as an action for conversion, from one in which the goods were left by consent, as in Peck v. Knox, supra. Plaintiff saw fit to leave his property in the building, not for a month or two or three, but for a year and eight months, inspecting it himself at intervals. It was not reasonable to expect that defendant had surrendered his right to sell or lease his property indefinitely. In fact, the execution of a lease by him was contemplated, and, if plaintiff was entitled to any notice at all, it was, according to the contract, only to be given after the premises had been leased. He did not lease it until after three or four months, and the property was not disturbed until nearly a year and a half thereafter. It is sufficient to sustain the judgment that it

has not been shown that defendant Herrman exercised any dominion over the property. The execution of the lease and transfer of possession was lawful and invaded no right of the plaintiff with respect to the ownership or possession of the property. The possession of the property was not disturbed. The plaintiff, under the arrangement with Herrman, in effect, had a lease of the space occupied by the property, terminable on notice, or a license to leave the goods there until notified to remove them. It did not constitute conversion of the property for Herrman to lease the building subject to plaintiff's right, which is, in effect, what he did. If this action for conversion could be sustained, then it would be for failure to notify plaintiff of the lease to Stein, and even though the property were still in the building uninjured.

It follows that the judgment and order should be affirmed, with costs. All concur.

(111 App. Div. 879)

HELLMAN v. CITY TRUST, SAFE DEPOSIT & SURETY CO. OF PHILADELPHIA.

(Supreme Court, Appellate Division, First Department. March 16, 1906.) PRINCIPAL AND SURETY-DISCHARGE OF SURETY-ESTOPPEL TO CLAIM.

Where a surety on a building contractor's bond consented by parol to modifications of the contract by which a provision authorizing the owner to retain 15 per cent. of the contract price until the work was completed, was waived by him and the time for performance was extended, the surety was estopped from contending that these modifications discharged it from liability.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Surety, §§ 366–369.] ·

Appeal from Trial Term, New York County.

Action by Myer Hellman against the City Trust, Safe Deposit & Surety Company of Philadelphia. From a judgment dismissing the complaint, plaintiff appeals. Reversed and remanded.

Argued before O'BRIEN, P. J., and McLAUGHLIN, INGRAHAM, LAUGHLIN, and CLARKE, JJ.

John A. Straley, for appellant.
William R. Conklin, for respondent.

LAUGHLIN, J. The complaint shows that on the 7th day of December, 1898, the plaintiff entered into a contract in writing with one Blake, by which the latter agreed to do certain work, consisting of blasting rock and excavating for sewer connections on premises at the northwest corner of Madison avenue and 117th street, on or before the 15th day of July, 1899, and other work consisting of blasting and removing rock from the same premises on or before the 15th of May, 1899; that Blake, as principal, and the defendant, as surety, duly executed a bond to the plaintiff in the penalty of $10,000, conditioned for the faithful performance of the contract by Blake; that the contract provided that partial payments should be made on account of the contract work every 15 days on certificates of a designated surveyor as to the amount earned, but that 15 per cent. should be reserved until the completion of the work; that the plaintiff kept and performed all of the terms and pro

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visions of the contract, except that "with the full knowledge, approval, and consent of the defendant" the provision with respect to reserving. the 15 per cent. until final payment was waived, and that with like knowledge, approval, and consent of the defendant there was a substitution of surveyors and an extension of the time of performance from time to time, and that the provisions as to strict performance thereof on the part of Blake and the plaintiff were waived by the defendant; that Blake failed to perform and abandoned the contract and refused to proceed therewith as therein required, and the plaintiff was obliged to proceed with the work and to expend in the performance thereof, including the amount paid to Blake, more than the penalty of the bond above the contract price.

Counsel for plaintiff, in opening the case, did not waive any right of his client to prove the material allegations of his complaint or make any admission inconsistent therewith. He stated that plaintiff would prove that, during the progress of the work, Blake was falling behind in paying for the labor, and that Blake, plaintiff, and plaintiff's counsel called on defendant, and Blake requested the defendant to consent to the payment of the full amount earned from time to time without deduction, in order that he might be able to perform the contract, and that with full knowledge and consent of all the parties the provision with respect to withholding the 15 per cent. was waived, and thereafter payments in full were made; that the time of performance was first extended 45 days, with the consent in writing of the defendant, and that thereafter, when Blake was again in default with respect to the time of completion, a conference was had between him, plaintiff, and defendant, and with the full knowledge and consent of the defendant the time of performance was further extended from time to time, and strict performance as to time was "wholly waived by the defendant"; that subsequently, at a like conference between all the parties, a substitution of surveyors was agreed upon, and that thereafter, with full knowledge and approval of defendant, Blake continued the work, receiving payments in full from time to time on the certificate of the substituted surveyors, until the middle of May, 1900, when he abandoned the contract, having a large part of the work uncompleted; that after giving the notices required by the contract, and continued default on the part of Blake, and notice to defendant of his default, and an opportunity to it to take charge of and complete the work, plaintiff completed it at an expense, including the payments made to Blake over the contract price, of more than the penalty of the bond. The judgment was granted and is sought to be sustained, upon the theory that parol evidence is not admissible to show the facts alleged and offered to be proved.

The defendant's contract being one of suretyship, it is claimed that it could not be waived in any of the three particulars specified, except by an agreement in writing. Of course, a valid new contract could not be made by parol, nor could the liability of the surety be enlarged or extended by parol. Here, however, was an existing contract in the performance of which the surety was interested, because it was liable therefor. In the circumstances disclosed, it evidently appeared to be to the interest of the surety to have the provision with respect to reserving part of the amount earned waived, and likewise with respect to

the time of performance. Having consented to these modifications at the instance of its principal, and the plaintiff having acted thereon manifestly to his prejudice if the consent and waiver were now to be repudiated, the defendant is estopped from contending that these modifications with respect to performance discharge it from all liability. Thomson v. Poor, 147 N. Y. 408, 42 N. E. 13; Gallagher v. Nichols, 60 N. Y. 438; Smith v. Wetmore, 167 N. Y. 234, 60 N. E. 419; Blanchard v. Trim, 38 N. Y. 225; Roberge v. Winne, 144 N. Y. 709, 39 N. E. 631; Dodge v. Wellman, 1 Abb. Dec. 512; Klein v. Lang, 27 App. Div. 158, 50 N. Y. Supp. 419; N. Y. Life Ins. Co. v. Casey, 81 App. Div. 92, 81 N. Y. Supp. 1; Wood on Frauds, § 403; Brant on Suretyship, § 439; Prairie St. Nat. Bank v. U. S., 164 U. S. 227, 17 Sup. Ct. 142, 41 L. Ed. 412.

It follows that the judgment should be reversed, and new trial granted, with costs to appellant to abide the event. All concur.

(112 App. Div. 13)

HOROWITZ v. GOODMAN.

(Supreme Court, Appellate Division, First Department. March 16, 1906.) PLEADING AMENDMENT.

Code Civ. Proc. §§ 542, 543, allow an amendment to a pleading of course. By section 546, the court may require indefinite and uncertain allegations to be made definite and certain, and sections 539 and 540 provide for an amendment where there is a variance between an allegation in a pleading and proof. Section 723 authorizes the court upon the trial, or at any other stage of an action, to amend any pleading by inserting an allegation material to the case. Section 544 declares that upon application of either party the court may permit the filing of a supplemental complaint or answer alleging material facts which occurred after the former pleading or of which the party was ignorant when it was made. Held, that where the original complaint alleged that plaintiff was the lessee of premises, and that defendant the lessor had caused a portion of the premises to be cut away, and threatened to further cut away the ceiling and floors, and an injunction was prayed, it was error to permit plaintiff to subsequently file what he termed "an amended and supplemental complaint" which charged that after the action was commenced defendant wrongfully entered on the premises and constructed certain shafts, and during the commission of such act personal property of plaintiff was damaged. Patterson, J., dissenting.

Appeal from Special Term, New York County.

Action by Rebecca Horowitz against Bernard Goodman. From an order allowing plaintiff to serve an "amended and supplemental complaint" defendant appeals. Reversed.

Argued before O'BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGHLIN, and CLARKE, JJ.

Henry A. Forster, for appellant.
Alfred Steckler, for respondent.

INGRAHAM, J. This action was commenced in June, 1905. By the original complaint, the plaintiff alleges that she is the lessee of certain premises belonging to the defendant, and that the defendant had caused a portion of the leased premises to be cut away for the purpose

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of constructing water-closets and shafts, and threatens to further cut away the ceiling and floors of the leased premises, and to construct such water-closets and shafts without the authority and consent of the plaintiff; and the complaint asks judgment that the defendant be restrained from constructing and maintaining said water-closets and shafts and from breaking the ceiling and floor of the plaintiff's store, and from in any way trespassing upon or interfering with the said store of the plaintiff. The lease was annexed to the original complaint.

The plaintiff made a motion for a temporary injunction, which was denied. The answer was served, and the case was put upon the calendar for trial. Subsequently the plaintiff moved for leave to serve an amended and supplemental complaint upon an affidavit alleging that after the action was commenced the defendant had wrongfully entered upon the plaintiff's premises and wrongfully constructed said shaft and watercloset in said premises; that during the commission of such act certain personal property of the defendant in the store was damaged; that the defendant had thus completed subsequent to the commencement of the action the wrongful acts threatened prior to the commencement of the action and alleged in the complaint herein, and has so damaged the personal property of the plaintiff in the course of his wrongful acts in trespass; that in order to prove said acts so committed by the defendant subsequent to the commencement of the action it is necessary that a supplemental and amended complaint be served herein, the commission of said acts subsequent to the commencement of the action necessitating an amendment of the complaint herein, as deponent is advised by her counsel and verily believes. Annexed to this was the proposed pleading which was intended to take the place of the original complaint. The Code of Civil Procedure recognizes no such pleading as an “amended and supplemental complaint." Section 478 of the Code provides that "the first pleading, on the part of the plaintiff, is the complaint"; and section 481 provides that the complaint must contain (subdivision 1):

"The title of the action, specifying the name of the court in which it is brought; if it is brought in the Supreme Court, the name of the county. which the plaintiff designates as the place of trial, and the names of all the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts, constituting each cause of action without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled."

Sections 542 and 543 of the Code allow an amendment to a pleading of course. By section 546 the court may require indefinite or uncertain allegations to be made definite and certain by amendment; and section 539 and 540, provide for an amendment where there is a variance between an allegation in a pleading and proof. Section 723 of the Code authorizes the court, upon the trial, or at any other stage of action, to amend any process, pleading, or other proceeding by inserting an allegation material to the case, or where the amendment does not change the pleading or other proceedings to the facts proved; and further power on relation to amendments is given by section 724 of the Code. This power in relation to an amendment to the original complaint relates to the insertion of an allegation of fact existing at the time of the commencement of the action, and thus, amendments to a complaint