The trial court was wrong in dismissing the complaint upon the ground that the judgment against the plaintiff in the Snow action is conclusive upon his contributory negligence. The recovery in that action was solely upon the defendant’s liability as an innkeeper. The allegations of negligence in the complaint were surplusage and did not add to or detract from his liability as innkeeper.
By serving notice of that action upon this defendant, an infant, and requiring him to defend, the plaintiff could not charge him with the result of that trial. If an infant is sued and the action proceeds without the appointment of a guardian, the judgment is of no effect against him. He can only appear and be bound by judicial proceedings when represented in court by a guardian appointed for that purpose. The plaintiff, therefore, defended the Snow action entirely at his own risk, and the defendant cannot in any manner be charged therewith. It was for the plaintiff to determine whether he would settle with Snow, to whom he was clearly liable as innkeeper in some amount, or would test the matter in court, and the expense and result of the litigation are entirely his own. As innkeeper the plaintiff had a special property in the team, and could recover against any one who wrongfully or negligently injured it in his possession, or who negligently or wrongfully took it from his possession without- his permission. It is unnecessary to determine whether this ground of liability is foreshadowed in the complaint or not. The plaintiff failed to prove any damages upon the trial, but if the complaint or the proof was defective it was fairly within the power of the court to permit amendment to cover-the situation as it developed upon the trial so long as the real cause of action was not changed. The complaint alleges that the defendant wrongfully ahdi negligently took this team from the plaintiff while, it was in his possession as innkeeper, and that one of the horses died while in teh defendant’s possession. The plehder evidently inserted the allegations with reference to the Snow judgment and the expense of that litigation for the purpose of enhancing the damages and charging *291the defendant with such judgment as proof of a part of the cause of action.
The court at Special Term clearly has power in its discretion to ' permit an amendment to the complaint by striking out allegations with reference to the judgment and the insertion of proper allegations about the value of the horse, if such an amendment is necessary. Such an amendment would not substantially change the cause of action, and in this case, at the close of the trial, such amendment might have been permitted if necessary to conform the pleadings to the proof, and the court clearly had the power to permit the plaintiff to reopen and make further proof of damages. The plaintiff was thrown out of court by a ruling which made it improper for him to ask for a construction of the complaint of permission to amend it, or to add to his proof. Upon the merits' I think different inferences may be drawn from the facts, and that, therefore, it was a proper case for the jury. Having been nonsuited upon a ground clearly erroneous, which prevented further action upon his part, plaintiff is entitled to a reversal of the judgment and a new trial.
Sewell, J., concurred.
Judgment and order affirmed, with costs.