It is conceded in the prevailing opinion that-- the' judgment appealed from is erroneous, at least to the extent of $200, and that it should-be modified by deducting this sum, and yet notwithstanding this fact it is proposed to make the appellants - pay the costs of the appeal by way of punishment for appealing, it being suggested that the proper practice should have been by motion instead of appeal: This is to be done upon the theory that the $200 to be deducted was included in the judgment by a clerical error. But this fact does not appear, and if it did it was an error committed by respondent’s attorney and not by the appellants. The judgment follows the decision in this respect, and it is difficult to see how a motion to correct the judgment would have cured the error. Hot only this, but the respondent’s attorney insists upon the appeal, in the' brief presented, that “ the findings of the Court on the facts should *449not be disturbed,” and that “ the judgment should be affirmed.” Nor do I think the proper practice would have been by motion instead of appeal. Where a judgment is erroneous the Code of Civil Procedure (§ 1294) gives to the party aggrieved the right to appeal. The appellants exercised this right' and ought not- to be punished for doing what the statute authorizes. For these reasons I do not think the appellants should be required to pay costs:
' "Upon the merits of the appeal I am of the opinion that the judgment should be reversed and a new trial ordered. The complaint, after stating the execution of the contract by which the plaintiff agreed to erect for the defendants Horowitz a building according to certain plans and specifications, alleged that the plaintiff “ duly performed all conditions of said contract” except in two respects, in which modifications were set out. The answer denied that the plaintiff had performed the contract on his part, and, as a separate defense and by way of counterclaim, alleged plaintiff’s failure to perform, and stated in what respects such failure consisted, among others, ■(1) the use of old bricks instead of new ones; (2) the use of inferior fireproofing and cement ; and (3) failure to lath walls. Plaintiff ■served a reply in which he denied “ each and every allegation ” of the answer which purported “ to set up a counterclaim.” The issue thus presented was whether plaintiff had performed his contract, and it was upon this issue that the parties went to trial. During the course of the trial it appeared that the plaintiff had not performed his contract in that he had used 172,000 old bricks instead of new ones, inferior cement and fireproofing, and had not lathed ■certain walls, but it was claimed that a recovery could nevertheless be had because the contract had been modified, in this respect and amendments of the complaint were permitted, against the objection and exception of defendants, so as to admit proof showing such modification. The proof admitted on the part of the plaintiff, which was denied by defendants, was to the effect that the defendants or their superintendent had orally agreed to these changes.
That the court had the power to permit the amendments cannot seriously be questioned, but it seems to me upon the facts presented the power ought not to have been exercised. The plaintiff knew when he served his reply that.' he had not performed the contract. *450Defendants had so alleged in their , answer, and had pointed out the particulars in which the contract had not been complied with, and yet the plaintiff insisted that he had, and it was not until the trial had actually been entered upon that a recovery was sought upon any other ground than that of strict performance of the contract. The purpose of a pleading is to notify the opposing party of the precise ground upon which a recovery will be sought upon the one hand, or defeated upon the other. This purpose is ineffectual if a party can allege strict performance in his complaint and at the trial have a recovery for non-performance upon the theory that there was a waiver, or, in the language of Judge Earl (Southwick v. First Nat. Bank of Memphis, 81 N. Y. 420): “ 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 adver sary:” A pleading ought not to be amended at Trial Term, except as to some feature of the case which .lias been unexpectedly developed duilng the course of the trial. (Rhodes v. Lewin, 33 App. Div. 369.)
For these reasons I dissent.
Judgment modified as directed in opinion, and as modified affirmed, without costs.