(concurring) :
I concur in a reversal of this order, but I am of the opinion that leave to serve an amended complaint should not he given to the respondent.
The amendment proposed is one which allows the substitution, in the place of facts which constitute no cause of action, of a new set of facts which constitute a good and sufficient cause of action, and to which the original complaint had no reference. In other words, it being-determined that the original complaint has set forth no cause of action at all, an amendment is allowed which permits it to set forth a good cause of action based upon other and different facts. Such an amendment would not be unusual and might be proper did it not appear that the new cause of action so to be set forth had, since the service of the summons in this action, become barred by the Statute of Limitations. The cause of action to be set forth in the proposed amended -complaint accrued on December 17,1902, and is of such a kind that under the statute (Village Law [Laws of 1897, chap. 414], § 322) it must be commenced within one year from that date. The summons in this action was served within that year, but the action set forth in the complaint accompanying it was not at all based upon the facts which the amended complaint will contain. No action upon such facts has ever been commenced. By thus substituting for the action originally brought, and in which this summons was issued, a new and distinct cause of action, which is already *276barred, the defendant is deprived of that defense. “ That would be to allow, not an amendment, but a new action under the guise of an amendment, and thus to deprive a party of his plea of the statute.” (See Logeling v. New York Elevated R. R. Co., 5 App. Div. 198, 201. See, also, Quimby v. Claflin, 27 Hun, 611.)
For these reasons I am of the opinion that no permission to apply for leave to amend should be granted by us.
Order reversed, with ten dollars costs and disbursements, without prejudice to a new motion for leave to serve an amended complaint.