(dissenting in part). I dissent in part and vote to reverse and to order a new trial. The plaintiff failed to make out the cause of action alleged in his complaint. Neither the granting of the “ conventional ” motion to conform the pleadings to the proof nor the Judge’s charge purported to deal with any alleged willful, malicious conduct of the defendant other than that specifically charged in the complaint. In the interests of justice, however, the plaintiff should have the opportunity of amending his complaint properly and proceeding to a new trial in accordance therewith.
Peck, P. J., Glennon, Callahan and Van Voorhis, JJ., concur in Per Curiam opinion; Shientag, J., dissents in part, in opinion.
Judgment reversed, with costs of this appeal to the appellant and the complaint dismissed, and judgment is directed to be entered dismissing the complaint herein, with costs. Settle order on notice.