Section 723 of the Code of Civil Procedure provides that the court may upon the trial, or at any other stage of the action, * * * in furtherance of justice and on such terms as it deems just, amend any process, pleading or other proceeding', by adding or striking out the name of a person as a party,. * * * or by inserting an allegation material to the case.
Here we find the power to authorize the amendment allowed at Special Term. The power is not limited, as in the case in which pleadings are conformed to the proof already given. In that case a change of the claim or defense may not be made. (Chapin v. Dobson, 78 N. Y., 74; Southwick v. Bank of Memphis, 84 id., 420.)
Nor is the application for leave to amend embarrassed by any effort to unite improperly different causes of action net belonging to the same class, but it is proposed to abandon the cause of action upon contract and substitute one in place thereof, in fraud. Such an amendment seems to be sanctioned by the case of Brown v. Leigh, 49 N. Y., 78; S. C., 12 Abb. Pr. [N. S.], 193, note; see, also, Pom. Rem. and Rem. Rights, § 566.)
This case does not fall within the rule that a plaintiff, after having affirmed a contract and sued for damages under it, cannot afterward rescind the contract, sue in tort and recover damages upon the theory of its disaffirmance. The amended complaint does not ask to rescind the contract, but seeks to recover damages upon the theory that the defendant fraudulently induced the plaintiff to enter into it, and the original and amended complaints are not inconsistent. (Bowen v. Manderville, 95 N. Y., 237.)
The power to grant the amendment in question is conferred upon the .court by the section to which we have referred; besides courts have general powers over proceedings and pleadings when there is no statutory or other express limitations. (Hatch v. Central National Bank, 78 N. Y., 490.) When this action was brought *369the claim was not barred by the statute of limitations. Then the court obtained jurisdiction of the person of the defendant, and we are of the opinion that the fact that the statute had run against the claim at the time the motion was made for leave to amend, furnishes no reason why the motion should not have been allowed to prevail. (Hatch v. National Bank, supra.)
The case of Quimby v. Claflin (27 Hun, 611) is unlike the one before us; that was where the party sought to bring in an additional cause of action arising out of independent matters. Here the' plaintiff seeks to present only the same matters already before the court, with such averments as to the scienter as are pointed out in the added allegation. ¥e are of the opinion that the Special Term had power to authorize the amendment. The case of Ross v. Mather (51 N. Y., 108) is not an authority aiding the defendant. There it was held that in an action in fraud a recovery cannot be had in contract. Plaintiff seeks an amendment Itere because it appears that he has no action for a breach of warranty, and he therefore seeks the opportunity to try the question of fraud.
Barnes v. Quigley (59 N. Y., 265) simply holds that upon a complaint for fraud a recovery in contract may not be had, and that a change of the pleadings upon the trial so as to authorize such a recovery may not be made.
The Special Term exercised its discretion upon the facts and circumstances presented to it, and we are satisfied with the direction the discretion took, and therefore sustain the order below.
The order should be affirmed, with ten dollars costs and disbursements.
Foluett and Kennedy, JJ., concurred.Order affirmed, with ten dollars costs and disbursements. '