Under the provisions of the Civil Practice Act and the Rules of Civil Practice, the judge presiding at the trial has the same power to grant amendments to pleadings as has the judge at Special Term. (Civ. Prac. Act, § 105; Rules Civ. Prac. rule 166; Feizi v. Second Russian Ins. Co., 199 App. Div. 775.) This includes the power to allow amendments changing the cause of action. (Feizi v. Second Russian Ins. Co., supra; Deyo v. Morss, 144 N. Y. 216.) The exercise of the power is safeguarded by giving the judge authority to “ adjourn the trial or direct a new trial, and impose terms and conditions in his discretion.”
When such an amendment is sought, counsel should point out definitely the scope of the amendment intended. Unless this is done opposing counsel may be deprived of the full opportunity of voicing his objections and the judge may lack the necessary knowledge upon which his determination of terms and conditions must be based. (Gordon v. Anderson, 200 App. Div. 616.)
In the present case, so far as appears upon the record, the proper practice in this respect was not followed. The scope of the amendment desired was not stated nor did the order allowing the amendment impose any limitations in respect to its nature.
However, counsel for both appellant and respondent stated on the argument that the motion followed a long conference with the trial justice and the record includes the amended pleading actually served.
We think it would be futile under these circumstances to reverse, the order because the proper practice was not followed and we prefer bo consider the order as limited to the granting of leave to serve the amended complaint which has in fact been interposed.
When so viewed we find no abuse of discretion.
We, therefore, affirm the order, without costs.
Present — Hubbs, P. J., Davis, Sears, Crouch and Taylor, JJ. All concur; except Davis, J., who dissents in a memorandum.