Knapp v. Fowler

Hardin, J.: Section 1018 of the Code of Civil Procedure declares upon the trial of an issue of fact the referee exercises also the same as the court, to allow amendments to the summons or to the pleadings. Section 723 confers upon the court in broad terms power to amend any pleadings, and to conform the pleadings “ to the facts ] roved,,” when the amendment does “ not change substantially the claim or defense.” The learned referee seems to have allowed the amendment under some doubt as to his power, and to have supposed the cases arising [202] under the old Code questioning and limiting the powers of a referee were applicable. The Chittenango Cotton Company v. Stewart (67 Barb., 423), and the cases there referred to, were decided before the'adoption of the sections to which reference has been made, sufra. . The provision found in section 1018 of the Code of Civil Procedure is new and seems to confer “ the same power as the court ” possesses. TIence there was no occasion to have the amendment confirmed by the Special Term. Having been made by the referee, the confirmation was unnecessary, and if given would have been fro forma. The Special Term had no power to review the decision of the referee. That could be reviewed only upon an appeal in the mode prescribed for reviewing such decisions. (Stevens v. Veriane, 2 Lans., 90; Woodford v. Bucklin, 14 Hun, 445, and cases there cited.) If the referee erred in allowing the amendment in question, or otherwise, his decision must be brought up by an appeal therefrom to an appellate court. We think the Special Term fell into an error in attempting to overhaul it upon a motion. Nor should we, upon an appeal from its order, pass upon the merits of the decision made by the referee. He has ordered an amendment, and thereupon ordered judgment for the plaintiff conditionally. We may reverse the order made at Special Term. As the Special Term had not power to set aside his decision, we should not, while simply reviewing the action of the Special Term, determine whether the referee exceeded his power in allowing an amended complaint or not. Certainly the question is not now properly before us. (Woodford v. Bucklin, supra.) We should reverse the order of the Special Term and order the case back to the referee to determine fully and unconditionally and order such judgment as he deems proper, after further hearing to be brought on before him upon the usual notice. Costs of this 'appeal to neither party. Mullin, P. J., and Smith, B, concurred. Order of Special Term reversed and the case sent back to the referee, to determine the same fully and unconditionally and to [203] order such judgment as he deems proper, after a further hearing before him, to be brought on upon the usual notice. Costs of this appeal to neither party.