Breitman v. General Motors Corp.

The court erred in granting its own motion, after submission of the case, conforming the pleading to the proof, amending plaintiff’s cause of action from breach of warranty to negligence. Such amendment prejudiced the defendants in that they were prevented from meeting the new issues subsequently raised by the amendment (Berkenstat v. Oliver, 275 App. Div. 679; Schneiderman v. Mother’s Friend’s Wet Wash Laundry, 230 App. Div. 197; Household Coal & Oil Distrs. v. Sage, 57 Misc 2d 428; Canham v. Canham, 4 Misc 2d 538; see 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., p. 30-473) and were thereby…