¶1The exception as to the admission of evidence of loss of business does not seem to me sufficient to require us to grant a new trial.
¶2Special damages do not constitute a .distinct cause of action. They only tend to increase the recovery. The reason why they should be alleged is that the defendant may not be misled. As they do not constitute a new cause of action, the court might have permitted plaintiff to amend the complaint on the trial (Code, § 173), and would have done so, undoubtedly, on motion, unless the defendant had proved that he was surprised ; just as was done in *525Miller v. Garling, 12 How. 203. Amendments should be allowed freely. Vanness v. Bush, 14 Abb. 33, and similar cases.
¶3The appellate court may treat the pleadings as having been amended at the circuit. Bowdoin v. Colman, 6 Duer, 183; Bate v. Graham, 11 N. Y. 237. We ought to do this, unless we see that injury resulted from the admission of the evidence. But it will be seen that no allusion was made to this evidence as an item of damages in the judge’s charge. It seems to me to be a “furtherance of justice” to amend the complaint or consider it amende^. Code, § 173.
¶4It is a furtherance of justice because it is not probable that the evidence had any effect on the verdict. And the evidence was competent and proper in its nature.
¶5It might perhaps be said that the objection was not properly taken. „The evidence was objected to as “irrelevant.” It was not irrelevant evidence. It was only inadmissible, because not alleged in the complaint. This objection should have been clearly stated.
¶6The judgment should be affirmed.
¶7James, J,, dissented.
¶8Judgment affirmed.